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Former Employee Pursues California Overtime Claim

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Reseda, CAMiklos was hired by a painting contractor last July 2011, six months before The Wage Theft Prevention Act (AB 469) went into effect on January 1, 2012. That section of the California Labor Code requires employers to provide notice to employees of their rate(s) of pay, including California overtime. It is highly unlikely that Miklos’s employer pays attention to this act, given the number of overtime laws he has violated. But the California Labor Commissioner--and California overtime attorneys--take notice.

From day one, Miklos suspected this employer/employee relationship was going to be a “bad marriage”. He was never given a job description so his expectations were vague. “I asked for a written job description to determine that I wasn’t working overtime??"I have a family to care for,” says Miklos, “but my job as an estimator soon escalated into 60 or more hours per week. At first I was told ??"verbally--that I would get a base salary plus 15 percent commission on profits, to be paid bi-weekly with my paycheck.

"I soon realized my employer was not paying commissions after the job was completed. He started to write checks to employees and subcontractors that were NSF. My paycheck bounced four times and I have proof??"the bank returned items and fines were charged to my checking account. He made good on the checks all four times but always after the fact and this caused friction, not to mention that overtime was never paid. Neither did he give me time off for my overtime. Instead I worked six-day weeks and sometimes Sundays. Saturdays would typically be four hours, just enough to mess up my weekend and not get enough rest.”

Miklos asked for a raise. Within six months his salary was bumped up to $500 per week from $300, but still no commissions or overtime compensation. Miklos was driving up to five hours a day on company business, collecting payments for the company, and on top of that he worked another seven hours as an estimator. "Long hours were taking a toll. Not one red cent commission. I asked him a few times about overtime but he just gave me a snow job, saying the job didn’t generate any profits.

“As you can imagine, after 14 months of this grueling work schedule, I needed to take one week off,” Miklos explains. He had never taken time off??"the crews worked Christmas Eve, July 4 and New Years Day. In an email, his boss said he “wouldn’t resist” Miklos’s request.

"I found my employer to be quite a slippery fish,” says Miklos with a chuckle. (He says these clichés are a survival tactic??"humor helps to cope with loss.)

“The night before I was scheduled back to work, I emailed the boss my job description, and I asked for overtime pay based on my latest salary of $500 per week and a 40 hour work week. He replied to my email: ‘Not approved’. He also back pedaled regarding my week off and said it was not authorized. How can he not approve state and federal labor laws?

"Even though he was pleased with my work up until this point, he started to come up with complaints from clients. Next up he wanted me to see a mental health professional--he thought I was crazy to ask for overtime pay. I kept that email, among others. If I didn’t see the mental health expert I couldn’t come back to work.”

Miklos told the boss that his request for a medical exam is actionable and illegal and never part of any agreement. “And since he is not providing me with medical insurance I cannot pay out of pocket so I will not comply to his request,” adds Miklos. “In 37 years working in the US I have never been asked anything remotely close to this.

"He fired me but told the California Employment Development Department (EDD) that I quit. He was cagey about having to pay unemployment benefits so he didn’t leave a paper trail and outright fire me, but he didn’t put me on the schedule. I tried to collect benefits, which I filed one week after the mental health incident. But the EDD made a decision based on interviewing the employer. I appealed on December 11th. I am waiting to hear the results, but it doesn’t look good. The judge who interviewed me during the appeals process was preoccupied by my employer claiming misconduct, which is a fiction. But if this was true, all the more reason to terminate me and therefore I should be getting unemployment benefits.”

Meanwhile, Miklos has filed a claim with the California Labor Commissioner and is waiting for a hearing date. In his complaint, Miklos is suing for $15,688, including 1,000 hours overtime and $3,100 in unpaid commissions.

According to Miklos, his employer, ABC Commercial Painting and Coating, has appeared before the Labor Board on several occasions. His boss went so far as to ask Miklos to “bear false witness” on another employee regarding an overtime issue. “Thankfully I didn’t have to purge myself but he is going to do that to me. He pays employees to come to court and testify in his favor. I want this information to be public and maybe help other employees in this company...

"I haven’t found another job yet. The writing is on the wall that this guy is going to burn me but I had no idea he would be so brazen about the overtime issue. I wouldn’t quit and he wouldn’t terminate me so that is why we had an unhappy marriage for 14 months. He loved saying “at the end of the day” but it wasn’t my favorite expression. At the end of the day I had worked a lot of unpaid overtime.”

Miklos is thankful that his family is supportive, otherwise he would likely be out on the street. He is hopeful that the New Year will bring with it a new job, and possibly compensation for California overtime.


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