Overtime (Wage & Hour) Litigation

Employers in California must abide by strict laws that govern when and how much their employees are paid. For example, in California employers must pay non-exempt employees for all time worked, overtime pay and must provide them with meal and rest breaks. Los Angeles overtime attorney, Gallenberg PC has helped many Californians with their compensation or overtime cases. Gallenberg PC does not charge potential clients for an initial and confidential telephone intake and accepts cases on a contingency fee basis. If you believe that your employer has violated your rights, call us today at (818) 237-5267 (Burbank) or (213) 986-8432 (Los Angeles) or (310) 295-1654 (Beverly Hills) or fill out our quick and easy free online Case Evaluation Form.

California has some of the most protective overtime and wage laws in the country. Generally, non-exempt employees are owed an overtime wage of time-and-a-half (1.5 times their normal wage) for work:

• In excess of eight hours in a day;
• In excess of 40 hours per week; or
• On the seventh consecutive day of work, for the first eight hours.

Additionally, employees are owed an overtime wage of twice their normal wage for work in excess of 12 hours per day, or on the seventh day of consecutive work for all hours in excess of eight hours worked.

In California, the law is that employees who work at least five hours in a day are entitled to a 30-minute uninterrupted meal period relieved of all duty and employer control. These employees are also entitled to one ten-minute every four hours worked or major fraction thereof. If a meal break and/or rest periods was not provided, the employer may be liable for these violations as well.

California laws presume that all employees are eligible for overtime. It is the employer’s responsibility to prove an exemption applies and that a particular employee is not entitled to overtime. Overtime requirements apply to all employees unless a specific exemption applies. The laws for exemptions are strictly enforced, and employers can be liable for damages if they incorrectly label an employee as exempt from overtime, a practice known as “misclassification.” If an employee is misclassified as exempt from overtime pay, an attorney may be able to help that employee to recover for unpaid overtime pay, missed lunch breaks and missed rest breaks.

For the employer to prove an employee is exempt from overtime, the employee must meet a two-part test: a salary requirement and a duty requirement.

The salary requirement simply mandates that an exempt employee must make at least twice the minimum wage to be exempt from overtime. As of January 1, 2013, the minimum wage in California is $8 per hour; therefore, to meet the salary requirement an employee must earn at least $16 an hour, or approximately $33,280 per year. If the employee does not make this much money, the employee cannot be exempt from overtime.

The duties requirement is more complex. Generally, an employee can be exempt from overtime if he or she meets the salary requirement above and also performs job duties that are:

• Executive, such as managing a company and supervising workers;
• Professional, such as a lawyer, doctor, engineer, or accountant would perform;
• Administrative, such as non-manual office labor; or
• One of a specific type of job, such as salesperson, computer professional, or others.

These are just general descriptions. The controlling statutes provide far greater detail that an experienced attorney can explain.

Only when an employee meets both the salary and the duty requirements is an employer not obligated to pay the employee overtime. Simply labeling an employee as “exempt” cannot obviate the overtime requirement. If you believe you have been incorrectly labeled as an exempt employee, seek the advice of a knowledgeable overtime lawyer.

In addition to misclassification based upon an employee’s alleged exempt status, it is also illegal in California to misclassify an employee as an independent contractor for the purpose of avoiding employer responsibilities related to taxes, benefits, and compliance with non-discrimination statutes. California has been cracking down on employers who purposely misclassify employees as independent contractors, and they can be held responsible for back pay and other penalties if they are caught.

Whether you should be deemed an employee or an independent contractor can be a complex question that depends on many factors such as what your job duties are, and the degree of control the employer has over your work. Speak with an experienced overtime lawyer at Gallenberg PC if you believe you may have been misclassified as an independent contactor.

Generally speaking, an employer seeks to misclassify employees as non-exempt by paying them a yearly salary regardless of the hours worked, in order for the employer to avoid paying overtime pay. While it is true that whether an employee is non-exempt is based on several factors as mentioned above, the following is a list of some occupations that California courts have typically found to be non-exempt.

• Receptionists
• Administrative Assistants
• Executive Assistants
• Clerks
• Cashiers
• Customer Service Representatives
• Dispatchers
• Assistant Managers at Retail Shops
• Kitchen workers such as dishwashers, cooks, sous chefs
• Waiter/Waitress
• Sales professionals such as Account Executives, Sales Person
• Security Guards
• Delivery Drivers
• Drivers
• Technicians
• IT Personnel
• Tutors
• Part-Time Instructors

• Pre-Shift Unpaid time. Cashier works from 8:00 a.m. to 5:00 p.m. but is told to arrive at 7:45 a.m. to put on the uniform, go through security, and get ready for the day, but must clock in at 8:00 a.m. This might constitute a violation because the employee is working starting at 7:45 a.m. and therefore should be paid for time beginning on 7:45 a.m. This is an off-the-clock overtime violation.

• Post-Shift Unpaid Work. Administrative assistant regularly works from 8:00 a.m. to 5:00 p.m., but is required to respond to e-mails and work calls after 5:00 p.m. but is not paid for that work that work.

• Job Duties Requires Unpaid Overtime Work. Repair Technician must repair products on-site from 8:00 a.m. to 5:00 p.m., but is required to fill out reports, inventory sheets at the end of the day. The additional work takes approximately one-hour but is not paid for that additional hour. This additional work must be paid because the employee is performing this work as part of his/her job duties.

• Overtime Hours Paid As Straight Time. Employee works nine-hours and is paid her regular rate for all nine hours. This is likely illegal because a non-exempt employee must be paid time and half for every hour worked in excess of eight hours.

• Double Time Not Paid. Employee works 13 hours and is paid time and half for the 9th-13th hour. This is likely illegal because a non-exempt employee must be paid time double time for each hour worked in excess of 12.

• Pay Per Piece/Project. A dog groomer is paid $10 to groom a dog which the employer believes should take 1 hour. The groomer takes one hour to groom the dog, and 20-minutes to speak and charge the dog’s owner, but the groomer is only paid $10. This might be illegal because the groomer has worked for one hour and 20-minutes, but the groomer is only paid for one hour of work.

In California, the employer is required to provide all employees with a wage statement. For non-exempt employees, the wage statement must provide several things including but not limited to, the rate of pay, the total number of hours worked, the time period covered, and the name of the employer. If your employer does not provide you with a pay stub, or does not provide you with a wage statement detailing all the items required by law (such as all overtime worked), you may have a claim against your employer for violations of Labor Code Section 226.

Gallenberg PC has recovered millions of dollars for employees who have not been paid overtime or denied their right to meal and/or rest breaks. A Los Angeles Employment Lawyer at our office may be able to take your case on a contingency fee basis! To be considered, you can call our new client intake line or you can fill out our quick and easy online Case Evaluation Form; this is the fastest way to get your case screened by an attorney. We do not charge prospective clients for a confidential telephone intake or online case review.

Submit your case for consideration now to a Los Angeles overtime attorney; dial (213) 986-8432 now. For Beverly Hills, please call (310) 295-1654. To submit your case for review to an employment lawyer in Burbank and surrounding San Fernando Valley, please call (818) 237-5267.