LawyersandSettlements (LAS): What is the most common complaint you are hearing from workers right now?
Shaun Setareh (SS): Time shaving—not paying employees for all the time worked. Typically employers will try not to pay their employee for about 3–10 minutes of work each day, such as booting up your computer. This seems like a pittance, but it can add up when you take into consideration five days a week, year round, involving many employees.
Recently, one of my clients contacted me and said that after he and his co-workers clock out, they have to log out of a computer in the main register and then go in the back room, work again on the system to upload data that takes another few minutes, and then turn on the alarm to leave. So why not clock out just before the alarm? Company policy and/or the company system require them to clock out first before the data is uploaded. So an employer could feasibly save a lot of money at the end of the month—at the employee's detriment.
LAS: What do you think is one of the biggest challenges facing California workers with regard to wage and hour violations?
SS: We deal with conservative judges a lot and we know they will give us a hard time because we are advocating on behalf of employees that are entitled to proceeds due to California labor law violations. Judges have an agenda and they typically don't like these employment cases. They have the power to dismiss a case or make it difficult for a lawyer to litigate successfully. Of course we have a good legal system in place where we can appeal those bad decisions—my firm currently has a number of appeals pending and sometimes they are uphill battles.
LAS: How long does it typically take to resolve an unpaid overtime claim in California?
SS: It varies. We can settle some cases within a few months while other cases can be litigated for three or four years. On the other end of the spectrum, if the defendant wants to vigorously litigate the case, we have the resources to fight them in the courtroom. Of course we prefer to try and settle all cases as soon as possible
LAS: Some California Overtime victims may be confused as to whether they need an attorney or if they need to go to the Labor Board—what's really in their best interest and what should they do?
SS: The labor board is a good venue if you work for a smaller company, less than 50 employees. What you cannot recover at the labor board are PAGA penalties (Private Attorney General Act pursuant to Cal. labor code 2698), meaning that for most labor code violations there are additional penalties that can be recovered in a regular lawsuit but you cannot recover them through the labor board.
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SS: You will be protected by any retaliation because retaliation itself is a violation of the labor code and employers would be wise to study the labor law—it can be very costly if they even intimidate an employee who makes a claim against them. And if you fear that you are on your way to being fired, then you have nothing to lose.
And you have nothing to lose by calling an employment attorney. Shaun Setareh works on a contingency basis, meaning that he doesn't get paid until you get paid. His firm has successfully recovered more than $30 million over the past few years from labor class actions against companies like UPS, Staples and AIG, just to name a few.