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California Unpaid Overtime: Employee Stands Up for his Rights

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Bakersfield, CAStan's employer thought he was exempt because he was paid on commission along with a base salary. "My boss figured since we were on commission, he could do whatever he wanted," says Stan (not his real name pending his lawsuit), including working 12-hour days without meal breaks, without overtime pay. Stan's boss didn't figure the California Labor Law was on the employees' side.

Pest Control"I started working at a pest control company in August 2004 until November 2007," says Stan. "Although I drew a guarantee (like a base salary) of $2400 per month, I was paid commissions that would kick in after $15,000 in sales." Because of this pay structure, the boss took advantage of Stan, having him open the offices at 6am and close at 6pm. As well, Stan took care of complaint calls and was scheduled to remove rodents, even thought he was strictly in the termite department.

According to Stan, the secretaries controlled the company. "They controlled the schedule which meant if I made them mad I didn't get any work. They were actually mean—when the company bought lunch for everyone, they made sure we were out of the office: there was no free lunch for us.

"They scheduled us to work through lunches. The secretaries were paid by the hour and they didn't care if we had meal breaks or not. This is a big company: in our branch alone there were about 30 employees and more than one hundred workers state-wide. All the 'producers' (the ones who went out and made money for the company) worked overtime. If we complained, we were rocking the boat and in the wrong. If we said anything, we were just complainers. The branch manager made it clear there would be retaliation if we blew any whistles.

"And there was an even bigger problem with scheduling. For example, I would get an appointment for 8am, another at noon and again at 6.30 pm. Or another day, just one appointment at 5.30pm. This happened because the secretaries asked customers what time they wanted us to be there and the secretaries slated us in to whatever time the customer requested.

Many times I had to work on Saturday on a TC (trouble call), even though we had already worked five days in a row. A TC means that a customer complains about the work we did. We aren't paid for a TC and it doesn't count on commission: we were expected to come in for free. How can anyone work for free? Plus, we are in Ventura County and you just can't live on $2400 a month.

Most of us complained. But our manager was more concerned about our belt matching our shoes than solving employment problems. They did nothing to change our schedules, no matter what.

It was infuriating. But I wouldn't have filed a lawsuit against them if they didn't relocate me to Bakersfield – they didn't pay my relocation bonus and I had to take a reduced base salary! My boss told me to park my truck in the yard if I didn't accept a cut in pay. 'If you aren't gonna take $2000 per month, you're fired,' he said. But that's another story and another lawsuit…

I contacted an attorney to find out my legal rights and turns out I am not exempt for a few reasons. Being a termite inspector entails more than outside sales--50 percent of my job was not outside sales so I don't qualify as an exempt employee. Two more criteria: I have to be able to control my schedule and be part of decision-making. The secretaries are more exempt than me.

Here in California, if an attorney doesn't think they will win a case, they generally won't take it, especially on a contingency basis. I did some research and found an attorney—I knew the California Labor Law was on my side.

My boss broke several labor code violations. Regarding overtime: I am suing for 12 hour days, 7 days a week and no meal breaks or any 10-minute breaks. That comes to $191,000 over the four year period. There is a four-year statute of limitations and the suit was filed April 2008.

This lawsuit could take years but I want to win—I don't want him treat other employees this way, it's the principal. Regardless what an employer thinks, he doesn't own us and cannot dictate our lives. I want to make this perfectly clear to him.

My dad told me never to start a fight but if someone throws the first punch, finish it. And my employer threw the first punch. At 45, I'm too old for a fist fight (and probably wouldn't last long) but there are better ways of fighting."

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