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Interview with Labor Lawyer Jose Garay, Part 2

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Irvine, CAIn the second part of our interview, lawyer Jose Garay answers some of the most commonly asked questions by employees regarding California labor law.

LawyersandSettlements (LAS): What is your area of expertise?
Jose Garay (JG): My area of expertise started in labor law representing employees for a wide variety of reasons, from discrimination to wage complaints. About six years ago I began to work exclusively on wage complaints focusing on overtime, meal and rest period violations and failure to pay wages.

LAS: How do employers fail to pay wages?
JG:The most common complaints require employees to work off the clock or not pay wages promised and failure to pay minimum wage - the latter is very common in some industries.

LAS: Is it advantageous for employees to file an individual or a class action lawsuit?
JG: In the course of representing employees for these violations stated [above], I recognized that I would have a greater impact representing employees on a class wide basis. Say an employer has a work force of 1,000 employees and only a few complain, the rest may not know that their labor rights are being violated as well. So in order to help correct the practice of these violations, it is better for everyone to file a class action lawsuit.

LAS: Success rate?
JG:It depends on how you define success but we have been successful in almost all of our cases. However, some that initially commenced as a class action had to be settled on an individual basis. But for class actions specifically, we have been settling between 80-90% of cases.

LAS: Are you seeing an increase in overtime cases being brought as class actions?
JG:Absolutely. When considering that an entire category/class of employees may be affected by their misclassification as overtime exempt workers, these cases are often far more efficiently and economically prosecuted as class actions. Indeed, prosecuting these cases as class actions is frequently the only way that each worker within a company's job classification can recover the wages that he or she is rightfully due. Dozens of lawsuits claiming misclassification of hourly workers as exempt/salaried employees are brought every month in this state, many of which seek court approval of their class action status.

The better educated that workers become about their legal rights, the more attentive companies will become toward how they treat and compensate their employees. Our law firm's commitment to putting an end to these violations is the reason we offer the level of information that we do.

LAS: How many of your cases go to certification?
JG: Only three out of well over 100. The certification process is almost the same as a trial or not. If a class action goes to certification, it could mean a number of reasons.

LAS: How do you convince IT workers and other employees that they are owed overtime and that they should stand up for their rights?
JG: Many don't have the gumption to come forward. For starters, anybody in California must understand that this state has the most protective laws which favor the employee for a number of public policy reasons.

For example, meal period law existed for many years prior to October 1999 but it didn't have a component whereby the employer had to pay the employee money. So the only way an employee could have learned that was through the Internet, and most people in California have Internet access. However, a lot of the laws are not clear.

The best way if they believe a violation has occurred is to do a search on Google or Yahoo. And most attorneys are more than happy to consult at not charge. We offer anywhere form � to 1 hour free consultation. In my opinion, I know on a first name basis some of the most successful class action attorneys and the opportunities to talk with them is so underutilized by the public.

If you knew or suspect you have a medical problem and can talk to a doctor for free without going through insurance, wouldn't you do it? And if that doctor happened to be one of the best, you owe it to yourself to go and find out.

LAS How does a worker know whether or not there is a violation?
JG: Sometimes they just don't know until they talk to us. Some of the laws are so esoteric; there are violations that many attorneys don't even know they exist.

Here is another example. The law in California says that you must receive payment for the hours worked at the end of the pay period. However most employers send pay with out-of-state checks. When you deposit the check at your bank they put a 3-7 day hold on your check and that is a violation.

LAS: What are the most common labor violations?
JG: Depends upon the industry. For example, when we received inquiries from employees in the restaurant industry, the biggest complaint was that they didn't get breaks. The second biggest complaint was that they were required to work before the punched in or after they punched out. Third: required to work through their meal period without getting paid and still getting � hour deducted from their pay check.

Retail for assistant managers is big: Even though they are paid as a salaried employee, they are not getting paid a lot. Working 50-70 hours a week is not unusual in the busy season but performing the duties of their subordinates on an economic and productivity level they are required to meet budgets that are not realistic. There is a lot of turn-over with part-time employees so they pressure the assistant managers to perform duties of hourly employees. The retail model relies heavily on keeping cost of goods and labor budget low; it is hard to increase revenue so they squeeze labor to increase profit margins.

Other areas are more complicated: high tech and computer professionals have exemption issues and the case can be more complex. Furthermore, the dynamics in the computer industry creates an environment where employees refuse to be paid hourly because they see themselves as professionals.
And there is the evolution of the computer industry - now duties do not require software engineers or information technology specialists. They can be misclassified as exempt and should be paid on an hourly basis. And companies can rely on exemption.(more to come on exemption)

The problem with the concept of overtime, depending on industry and company, is simply that a lot of employees do not know they should be paid overtime and other compensation.

LAS: Good to know. Thanks, Jose.

Contact Josie Garay:
Phone: 949-260-9193


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