California Overtime Laws: Reporters and Journalists are supposed to be paid Overtime, says the Ninth Circuit

On September 27, 2010, the Ninth Circuit in Wang v. Chinese Daily News, 623 F.3d 743 (9th Cir. Cal. 2010) disagreed with the newspaper company, upholding violations of wage and hour laws committed against newspaper reporters and journalists. The California district court originally found that the newspaper company violated state labor laws by failing to give newspaper reporters labor law breaks and the newspaper company failed to pay the reporters proper overtime pay as required by state and federal wage and hour laws.

The newspaper company argued that it was not required to pay newspaper reporters overtime compensation for working more than 40 hour weeks under the Fair Labor Standards Act because the newspaper reporters meet the test of the creative professional exception to federal and state overtime laws. Federal wage and hour laws exempt certain companies from paying overtime compensation to professional white collar workers. To qualify as an exempt professional under federal overtime law, a newspaper reporter must be paid at least $455 every week and the reporters "primary duty" must be the performance of work involving invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

Reporters journalists are entitled to overtime compensation when they perform job duties involving routine mental, manual, mechanical or physical work. California wage and hour law, with respect to overtime rules for professional employees and reporters, is similar to overtime laws under the Fair Labor Standards Act in that a professional employees is one who is primarily engaged in the performance of work that is original and creative in character in a recognized field of artistic endeavor and the result of which depends primarily on the invention, imagination, or talent of the employee.

The Obama Administration has chimed in on this issue about overtime pay for professional employees and reporters. The Department of Labor takes the position that journalists and reporters are required to be paid overtime compensation when they perform job duties that are limited to collections, organizing and putting data into a computer or other system. In order for newspaper reporters and journalist to be denied the benefits of state overtime laws and federal overtime laws, the employees must perform job duties that involve creation, imagination or ability. Reporters and journalists are entitled to overtime compensation under wage and hour laws when their work is routine and clerical in nature, rather than creative. 

California Overtime Laws- What time Should You get Paid for Working?

California typically defines work time somewhat more broadly than the Fair Labor Standards Act. While under federal employment law work time is paid when a company suffers or permits the employee to perform job duties, the state of California widens work time to include all that which a company suffers, permits, or “controls.” Set out below are the circumstances in which California’s broader definition of work time produces a different result.

California’s bigger description of work time, as that which a company suffers, permits or “controls,” has been construed to make extended commute time on company buses paid hours of work where the company requires workers to ride on the buses. Under the Fair Labor Standards Act, travel as a passenger outside of the regular workday on an overnight trip is not considered to be work time. The time spent by workers on company-provided shuttles from a parking lot to a work site was found not to be paid where the workers did not have to ride the shuttles from parking lots to work, but could be dropped off at the work site.

On-call time is not paid if the employee can use the time spent on call primarily for his or her own benefit. Considerations in determining whether on-call time is work time for purposes of California wage and hour laws are geographical restrictions on the employee’s movement, required response time, nature of the employment relationship, including industry practice, and any other limitation on the employee’s ability to use the time for his or her own benefit. In determining whether on-call time is work time, the state does not give any deference to whether the company and employee have agreed to consider the on-call time to be noncompensable.

California labor laws do not specifically exclude from work time certain activities that are excluded from work time under the Fair Labor Standards Act. The activities which are excluded from work time under the Fair Labor Standards Act but not California state labor law include preliminary and after-work activities, commuting time in company-provided vehicles, and clothes changing and wash

Want to know if Your Current or Former Employer Owes You Overtime Pay under California Overtime Laws?

Want to know if your current or former employer owes you money for failing to pay you the proper amount of wages as required by California law? Here are a few examples of the types of wage and hour schemes employers use to cheat employees out of wages:

Under labor laws, courts often find that employees have a valid wage and hour overtime law claim when employers use a flag rate or piece rate compensation scheme. In particular, employers often violate state labor laws by failing to pay workers for the time they spend attending meetings and training sessions. Furthermore, many California employers are liable to employees for penalties when the employer’s fail to pay for time spent setting up work stations and booting up and shutting down computers. 

Employers also frequently implement illegal comp time schemes. A comp time scheme is one where the employer fails to pay the employee overtime wages for working more than 8 hours in a workday or forty hours in a workweek because the employer tells the employee he or she can leave early the next day. For example, suppose an employee works 10 hours on Monday and the employer says you can leave two hours early tomorrow and we will mark the timekeeping system so that it looks like you worked two 8 hour days. Under California overtime laws, the employee is losing two hours of overtime pay because on Monday the employee should have been paid one and a half times the regular rate of pay for working hours 9 and 10.

Another major problem is that employers implement alternative workweek schedules without conducting a valid election process which violates the California labor law. These types of illegal employment practices often occur in the San Francisco Bay Area. 

Some illegal employment law practices in Southern California often involve failing to compensate employees for travel time and time spent working off the clock from home, sending emails and making phone calls. Not only is it against California labor laws to not pay employees for time worked from home when they are non-exempt, but employers must also reimburse employees for the work-related expenses as well.