When Should Employees Get Overtime Pay?

Federal law regulates overtime pay requirements. According to federal law, employees who work more than 40 hours in one week should receive one and a half times their normal pay rate for the “overtime” hours. As is often the case, there are exceptions to this law, but it’s important for employees to question their situation due to the fact that employers often misunderstand the rules or misapply them in specific circumstances – most often at the employee’s expense.

If you are an employee that works more than 40 hours and week without overtime pay, your employer could be in violation of the Fair Labor Standard Act. If an employer is in violation of this law, you could be entitled to the amount owed to you as well as additional funds to cover liquidated damages and attorney’s fees.

Define Your Employee Classification and Job Duties:

There are two categories of employees: exempt and nonexempt. The Fair Labor Standard Act (FLSA) doesn’t cover exempt employees. Federal law does not require employers to provide exempt employees with overtime pay. Exempt employees are often in managerial positions. They can receive pay on a salary basis or as an hourly wage. They have independence in their job duties and authority over their own work. Exempt employees are involved with creating/applying workplace policies and have some responsibility for making decisions within the company framework.

It’s important to consider exempt status because employers will often categorize employees as exempt inaccurately. For example, an employer could provide an employee with the title of Assistant Manager, but fail to provide the employee with any authority or responsibility for other employees. Another example is when employers categorize an employee as an independent contractor, but their day-to-day job duties more closely resemble those of a normal employee.

If you are an employee who does not receive overtime pay it’s important to define your status: exempt or non-exempt. This will determine whether or not your situation is governed by the FLSA. If you are misclassified as exempt, you can fight to get the compensation to which you are entitled by federal law.

Employers subject to the Fair Labor Standard Act aren’t permitted to exchange personal days or other extra benefits for overtime pay. Employers are also not allowed to have mandatory meetings that occur when employees are officially “off.” As an employee, you are entitled to the pay you have earned. When you put in extra hours, you are entitled to extra pay. If your employer doesn’t pay you overtime (to which you are legally entitled through the Fair Labor Standard Act), contacting an expert in unpaid overtime is the most appropriate step towards resolution.

Blumenthal, Nordrehaug & Bhowmik helps you enforce your overtime rights. If your employer is knowingly and willingly refusing to pay you earned overtime pay, you are entitled to the amount owed. Call today to discuss your employment situation and see how you can get paid past due overtime wages. 

Salary Employee Laws Explained

In all workplaces, employees are either classified as exempt or non-exempt as it pertains to whether various wage and hour regulations apply to them. In general, exempt employees are those who primarily have management and decision-making responsibilities. Some common examples are executive, administrative, or professional employees as well as certain types of inside or outside salespeople. The misclassification of employees’ exempt status has been a fruitful source of overtime back pay awards won from litigation.

Job titles can often be misleading when categorizing different employee’s exempt statuses. For example, even though some employees may have an impressive job title (e.g. manager) a closer look at their responsibilities might reveal that they should be classified as non-exempt. State and federal law have created rules to define what exactly constitutes an exempt employee. These rules all have two requirements: a minimum salary requirement and a general description of job duties which the employee must exercise in order to be classified as exempt.

As for the salary requirement, all exempt employees must earn at least two times the state minimum wage for full-time employment. In California, this would compute to $2,773.33 per month. The duties requirement will vary depending on the type of employee. Generally, exempt employees customarily and regularly exercise discretion and independent judgment in their jobs. These judgments must be free from immediate supervision and must be of real and substantial significance to the policies or general operations of the business or its customers. It can also involve making recommendations for action to a superior authority. “Customarily and regularly” means frequently in the course of their day-to-day activities.

The Truth About California Wage and Hour Class Action Lawsuit

In California, many employers violate state employment laws. However, it is difficult for employees to find employment attorneys to represent them in these cases for many different reasons. The first reason why employees have a difficult time finding an attorney when a big company commits labor law violations is that the worker does not have the money to pay an attorney. The second reason why it is hard to find a California discrimination or wrongful termination attorney is because in some discrimination claims attorneys fees can go both ways and therefore it is not economically viable for attorneys to take the claims on a contingency basis. The final reason is that the damages in wrongful termination and discrimination lawsuits are difficult to prove. Often times, the employee is already working at a new job and therefore future lost wages are unavailable for the employee. As a result of these reasons, many employers get away with labor code violations, or do they?

California has very strict wage and hour laws. Often times, employees in the state seek an attorney because they think that their workplace rights have been violated. Perhaps a discrimination or wrongful termination violation. Many times, the employee is right: the employer fired the employee for some discriminatory reason such as pregnancy discrimination or race discrimination. Although the employee has a difficult time finding an attorney for the reasons described above, the employee may not know that his or her wage and hour violations were violated.

Under California overtime laws, employers must pay employees overtime compensation for all hours worked in excess of eight hours in a single workday and under the Fair Labor Standards Act and the California Labor Code employers must pay employees overtime compensation at one and a half times the employees regular rate of pay for all hours worked in excess of forty 40 hours in a single workweek. Often times, employers pay employees a salary and tell the employees that because they are paid a salary, they are not entitled to be paid overtime. The employees often take the employers word for it and work a lot of overtime hours without additional compensation.

Although employees may have difficulty finding an attorney to take their case for discrimination or harassment in the workplace, the employee will likely not have time finding an attorney to take their case on a contingency fee basis under a wage and hour legal theory. If plead correctly, the wage and hour claims do not give rise to two way attorneys fees and the benefits of litigating overtime claims in California are many. Meanwhile, in the wage and hour class action lawsuit, the employees still get to litigate their discrimination and harassment claims because the employer usually takes the employee's deposition and the employee gets a chance to explain how the employer's conduct was discriminatory. Although on the complaint discrimination is not named as the cause of action, at the end of the day wage and hour overtime class action attorneys enable employees to find attorneys that will help them fight back against big companies. The lawyers front all the litigation costs and the employees never pay the overtime attorneys unless the overtime lawyers win them money.

CALL CENTER WAGE & HOUR LAWS

California employees are entitled, under the relevant wage and hour laws, to compensation for all hours worked. The law requires employers to pay employees overtime compensation at one and a half times the employees regular rate of pay for all hours worked in excess of eight hours in a single work day. Employees are also supposed to be paid overtime when they work more than forty hours in the same workweek. The failure to pay employees overtime pay in either of these scenarios is a violation of state and federal overtime laws.

Some companies hire call center employees that work at home as independent contractors, when in fact these virtual call center employees should be making compensation for all of the time they work. For instance, an employer may higher an employee and agree to pay that employee a certain rate for all of the time the employee is actually on the phone with the customers. As a result, the call center company is likely violating state wage and hour laws by failing to pay the virtual call center employees for all hours worked.

Despite the fact that many companies consider call center employees to be independent contractors, under California employment laws, it does not matter what the employer calls you or that the agreement actually calls you an independent contractor. Contact an employment law attorney at Blumenthal, Nordrehaug & Bhowmik today if you are working for a company from your home as a call center employee and you are not paid for all of the hours you work. You may be eligible to join or start a class action lawsuit to recover significant damages if you have a valid claim.

WAGE LAWS ON MANDATORY TRAINING TIME

Under California wage and hour laws, employers are required to pay all non-exempt hourly employees for attending mandatory company meetings. This means that when workers in California are required to go to a meeting, regardless of whether or not the meeting is held in person at the company or another location, or even a webinar held over the Internet, the employee is entitled to compensation at the regular rate of pay if the meeting time falls within the first 8 hours of the workday and 40 hours within the workweek. However, if mandatory meeting time pushes employees past the 8 hour workday or 40 hour workweek, California employees are entitled to overtime pay for the time spent attending mandatory meetings.

California employees are also entitled to compensation for attending mandatory training. If your former or current employer makes you perform job training off-the-clock and without compensation, contact a California employee compensation lawyer today to learn about how to get reimbursed for training time.

In particular, training typically occurs in the computer industry. Often times, computer hardware engineers, code writers, ans other computer professionals and technicians work off the clock training for the job without compensation. This can add up to a lot of unpaid compensation if these computer employees are working off the clock training for the job several hours a week. However, it is not uncommon for these computer industry workers to perform job duties off the clock and without pay because computer positions require a high degree of skill and in order to complete the job to a satisfactory level, the computer professionals must undergo such training. Computer professionals that are training for a professional position with a computer company are non-exempt from overtime laws, meaning that these employees must be paid overtime compensation for all hours worked in excess of 8 in a workday, 40 in a workweek and in excess of 6 consecutive workdays in the same workweek.

The Five Most Common Wage and Hour Labor Law Violations

It is not uncommon for employers violate state wage and hour laws. After all, most big businesses in the state of California have committed illegal pay practices. These are probably the 5 most typical and reoccuring violations of overtime laws by employers.

1. Paying employees in California a fixed salary without overtime pay is a violation of California law. This is probably the biggest misconception. Even though many employers trick employees into thinking that they are not entitled to overtime compensation and meal and rest breaks, employees must be aware of the fact that a salary by itself does not preclude workers from making overtime pay.

2. Another major problem involves tricking highly skilled professionals into thinking that they are going to have a job under which they can exercise independent discretion and judgment but in reality the company has simply violated state overtime pay laws by misclassifying the employee as exempt.

3. The third most common wage and hour violation in California involves illegal timekeeping systems. Many companies in the state have been caught changing the hours employees work in violation of CA Law.

4. Failing to reimburse employees for work-related expenses incurred while working for the employer, whether it be gas mileage or something, has become a very prevalent and reoccuring labor law violation committed by employers.

5. Unpaid vacation time and waiting time penalties. When an employee is terminated and not paid all of the vacation time the employee earned under over the years of his or her employment, the business is violating the Labor Code. For these common vacation pay violations, employees can get waiting time penalties since vacation time is considered earn "wages" for purposes of California law.

FEDERAL OVERTIME LAWS: HOLIDAY & VACATION PAY

The Fair Labor Standards Act provides that the term "regular rate" shall not include "payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause …."

This provision deals with the type of absences which are infrequent, sporadic or unpredictable. It has no relation to "regular absences" such as lunch periods nor to regularly scheduled days of rest. Sundays may not be workdays in a particular plant, but this does not make them either "holidays" or "vacations," or days on which the employee is absent because of failure to provide sufficient work. The term refers to those days customarily observed in the community in celebration of some historical or religious occasion; it does not refer to days of rest given to employees in lieu of or as an addition to compensation for working on other days.

The term "other similar cause" refers to payments made for periods of absence due to factors like holidays, vacations, sickness and failure of the employer to provide work. Examples of "similar causes" are absences due to jury duty, attending the funeral of a family member or inability to reach the workplace because of weather conditions. Only absences of a nonroutine character which are infrequent or sporadic or unpredictable are included in the "other similar cause" category.

The computation of overtime pay in holiday workweeks is governed by these rules:

(1) So-called "idle" holiday and vacation pay—money an employee receives whether he works or not—need not be included in figuring the regular rate. It may not, however, be offset against overtime pay due under the Act;

(2) Straight time pay which an employee receives for working on the holiday or vacation must be included in figuring the regular rate and it may not be offset against overtime pay due under the Act.

(3) Premium payments of at least an extra half-time which an employee receives for time worked on the holiday may be excluded in figuring the regular rate and may be offset against overtime pay due under the Act;

(4) A total payment of time and a half or more of the regular rate which an employee receives when he or she works on a holiday or vacation will be regarded as pay for time worked, even though the employee would have received straight time if the employee had not worked on the holiday. Thus, the straight time would have to be included in the regular rate. The extra half-time, however, may be excluded in figuring the regular rate and may be offset against overtime pay due under the Act.

However, care should be taken on how the pay plan is structured. If an employee is entitled to holiday or vacation pay even if the employee works that period, that pay cannot be used to meet the requirement that the premium pay equals or exceeds one and one-half times the regular rate.Thus, if an employee is entitled to vacation pay regardless of whether the employee works or not and the employee receives straight time pay, the employer must pay overtime when the employee works on the straight time pay.

EXAMPLES OF CALCULATING VACATION PAY

Example (1): An employee whose rate of pay is $5 per hour and who usually works a 6-day, 48-hour week is entitled, under an employment contract, to a week's paid vacation in the amount of the usual straight time earnings ($5 × 48 = $240). The employee foregoes a vacation and works 50 hours during that week. The statutory workweek is 40 hours.

$240.00 = Vacation pay

$250.00 = Regular pay ($5 regular rate × 50 hours worked)

$ 25.00 = Overtime pay ((½ × $5) × 10 overtime hours)

$515.00 = Total Compensation Due

The regular rate of $5 per hour is not increased by adding the $240 vacation pay into its computation, and no part of the $240 may be used to offset the statutory overtime compensation which is due. There is no statutory right to the $240 vacation pay or any other sum as vacation pay. This is a matter of private contract.

Example (2): The same employee in Example (1) above is entitled under a contract to 8 hours of pay at a regular rate of $5 per hour for the Christmas holiday. The employee foregoes the holiday and works 9 hours on that day. During the entire week the employee works 50 hours.

$ 40.00 = Idle holiday pay ($5 × 8 hours)

$250.00 = Regular pay ($5 × 50 hours worked)

$ 25.00 = Overtime pay ((½ × $5) × 10 overtime hours)

$315.00 = Total compensation due

The regular rate of $5 was not increased by adding the $40 holiday pay to the computation. No part of the $40 may be used to offset the statutory overtime compensation due.

[If the employment lawyers are not entitled to holiday or vacation pay when they work on those days, then the premium pay received for work on those days is excludable from the regular rate and credited towards overtime pay

Example (3): Same employee in the above examples except that, under the contract, the employee is only entitled to holiday pay when no work is performed. If the employee is required to work on the holiday, instead of receiving the holiday pay he or she receives a premium rate of $7.50 (time and a half) for each hour worked on the holiday. The employee works 9 hours on the holiday and 50 hours during the week.
$250.00 = Regular pay (50 hours × $5) 

$ 25.00 = Overtime pay (10 hours × (½ × $5))

$ 22.50 = Holiday premium (9 hours × ($7.50−$5))

The employer is able to take credit for the holiday premium against the overtime premium and the employee is only due $2.50 for overtime ($25 overtime − $22.50 holiday premium). The straight time vacation pay ($9 hours × $5 = $45) is not included in the regular rate or credited against the overtime premium. Thus, the employee is paid as follows:

$250.00 = Regular pay

$ 22.50 = Holiday premium

$ 2.50 = Overtime pay due ($25 overtime − $ 22.50 premium)

$ 45.00 = Holiday straight time

$320.00 = Total Compensation Due

The statute does not require premium pay for a holiday. Since the holiday premium is one and one-half times the established rate for nonholiday work, it does not increase the regular rate because it qualifies as an overtime premium under Section 7(e)(6), and the employer may credit it toward the statutory overtime compensation due.

Example (4): Same employee as in the above examples, except that the contract calls for $10 (double time) for each hour worked on the holiday.

$250.00 = Regular pay ($5 × 50 hours worked)

$ 25.00 = Overtime pay (10 hours × (½ × $5)) 

$45.00 = Holiday premium (9 hours × ($10−$5)) 

The employer is able to take credit for the holiday premium against the overtime pay, so no additional overtime is due ($45 premium > $25 overtime). Thus, the employee is paid as follows:

$205.00 = Regular pay ($5 × 41 nonholiday hours)

$ 90.00 = Holiday pay (9 hours × $10)

$295.00 = Total Compensation Due

Since this holiday premium qualifies under Section 7(e)(6), it is excludable from the computation of the regular rate and may offset against overtime compensation due.

In distinguishing Examples (3) and (4) from Examples (1) and (2), it should be noted that the correct provisions in Examples (1) and (2) called for holiday pay whether the employee worked or not. In Examples (1) and (2), the employee received some pay attributable to the holiday, whether he or she worked or not, and some pay at a nonholiday rate for hours worked on the holiday. In Examples (3) and (4), all the premium pay the employee received for working on the holiday (even though it is double time) was directly attributable to work performed on the holiday.The payment of an additional hour's pay to employees who work a seven-hour shift at the beginning of the change to daylight savings time is treated as a holiday hour and need not be counted as part of the regular rate of pay for overtime purposes. This amount, however, cannot be credited toward any overtime compensation due for the week. But at the end of the daylight savings period, employees working the nine-hour shift are entitled to overtime on the basis of all hours worked in the workweek, including the extra hour worked during the time change