Wage and Hour Lawyers
Even when an employee is not paid by the hour, but by commission or piece rate, the employee must still be paid the effective minimum wage for all hours worked. Meals or lodging cannot be credited against the minimum wage without a voluntary written agreement.
The minimum wage requirement applies even when an employee works off-the-clock or does not report all hours they work. In sum, while it would seem questions regarding minimum wage would be relatively straightforward, they can very well be subject to complicated calculation. If you believe that you are owed unpaid wages, we urge you to contact an employment attorney in Orange County promptly.
Non-exempt employees working in the State of California must be paid overtime at a rate of time and a half (1½) of their regular hourly rate of pay for:
- All hours worked in excess of eight (8) hours in any workday;
- All hours worked in excess of forty (40) hours in any work week; and
- The first eight (8) hours worked on the seventh consecutive day of any work week.
In addition, an employer must pay an employee double time (twice their regular hourly rate of pay) for all hours an employee works over twelve (12) in any workday or each hour worked over eight (8) hours on the seventh consecutive day of work in any given workweek.
When determining the proper overtime rate of pay, an employer must not only calculate regular hourly rate of pay, but also salaries and wage augmentations such as shift differentials, non-discretionary bonuses, commissions, or piece rate pay an employee receives. In practice, this often means the overtime rate of pay is far in excess of time and one half and must be carefully calculated and paid on a number of different factors.
Exemptions from Overtime (Salaried Employees)
California employees must be paid overtime unless they meet the strict and narrow requirements to qualify for an exemption. Exemptions commonly applicable to California employees are:
- The Executive Exemption (i.e. employees who supervise more than two (2) people more than fifty percent (50%) of their time);
- The Administrative Exemption (i.e., qualifying human resources personnel or IT employees);
- The Professional Exemption (i.e., doctors and lawyers);
- The Outside Sales Exemption (i.e., employees who spend more than fifty percent (50%) of their time out of the office performing sales);
- The Inside Sales Commission (i.e., employees performing sales who work in the office but receive more than half their compensation in the form of commission each pay period); and
- The Computer Professional Exemption (i.e., software programmers)
These exemptions are each very different and require satisfaction of a number of different criteria for an employee to properly qualify, including specific duties and compensation requirements. Exemptions are to be construed strictly against the employer, so just because your employer has classified you as exempt (“salaried”) does not mean you are properly being denied overtime compensation.
Employees are entitled to take meal periods (lunch breaks) based on the number of hours they work in a day. Meal periods must be uninterrupted. For most employees, who work an eight (8) hour day, an employer must provide them the opportunity to take a thirty (30) minute meal period within their first five (5) hours of work. If, however, the employee only works six (6) hours or less, they employee can waive (give up) the meal period if they voluntarily decide to do so.
If an employee works longer hours, they may be entitled to additional meal breaks. Specifically, an employee who works ten (10) hours is entitled to a second 30-minute unpaid meal break. If the entire workday will not exceed twelve (12) hours, the employee may waive the right to a second meal break. However, the second break may be waived only if the employee actually took the first break. (In other words, an employee may not waive both breaks in one day.) If the employee works more than twelve (12) hours they are entitled to another meal break.
Most situations involving the failure to provide meal periods today arise in a less straightforward way such as when an employee does not have time to take a lunch break because of their workload, when a project must be completed and employees cannot leave prior to doing so, or when some other employment circumstances prevents them from doing so. This can also arise when an employee is not able to take a meal period until after their fifth hour of work for some specific reason.
Again, unless the employee is relieved of all duty during the meal period, the meal period is considered “on duty” and the employee must be paid for that time at his or her regular rate of pay. Employees are also entitled to a meal period penalty, which is an hour of pay at the employee’s regular rate.
California also requires employers to provide rest breaks, which are paid breaks within a shift for rest or leisure. Employers must allow employees to take a paid ten (10) minute rest break for every four hours (or major fraction) worked. Breaks are not required for employees who total daily work time is less than three-and-a-half hours.
Similar to meal periods, if an employer fails to provide an employee a rest break the employer must pay the employee one hour of premium pay at the employee’s regular rate of compensation.
If you feel like your employer isn’t allowing sufficient rest breaks, it would be wise to contact an Orange County employment lawyer to discuss your unpaid wages claim.
There is often confusion as to whether employees should be paid for their time traveling to or from a worksite. As a general matter, travel time is considered to be hours work and should be paid including, among other things, travel to a different work site on a temporary basis, travel to special projections, travel using an employer’s transportation to and from the work site, and travel during which the employee is prohibited from using his or her own transportation. This time also must be counted as work time for purposes of calculating overtime for non-exempt employees. In addition, the employee’s out-of-pocket travel expenses must be reimbursed by the employer. However, travel time does not typically include an employee’s normal commute and from his or her regular work site.
Employees often overlook expenses they incur in the course of performing their work duties and responsibilities that should be reimbursed. In California, employers have a duty to reimburse employees for reasonable work-related expenses. Courts have held that employers that know or have reason to know that an employee has incurred work-related expenses must reimburse the employee, even if the employee does not request reimbursement. Examples of the more common work-related expenses we see include:
- Automobile-Related Expenses and Mileage;
- Tools and Equipment;
- Uniforms; and
- Cell Phones/Mobile Devices
If you believe you have issues with your pay, you should speak to an employment attorney immediately. Contact Ares Law Group now for a free consultation regarding your claim.