wagesWage and hour claims essentially involve legal compensation for services rendered. The California Department of Industrial Relations, Department of Labor Standards Enforcement (“DLSE”), Wage and Hour Division promulgates the rules for wage and hour requirements in California.The Industrial Wage Commission Wage Orders summarize requirements for certain industries and types of employees. These are often times taken in conjunction with the Federal Fair Labor Standards Act (“FLSA”).

Persons providing services for employers have a right to be paid correctly. Employers cannot avoid paying wages and overtime by classifying an employee as “exempt” from wage and hour regulations. An “exempt” employee is usually salaried, while a “non-exempt” employee is paid hourly. Many times employers attempt to misclassify employees as “exempt” in order to avoid certain liabilities and to circumvent the wage requirements as well as to avoid work-time limitations and overtime requirements. The term “employee” is broadly construed, and there are strict rules to properly classify employees. If employees are misclassified, they may not be properly paid for time spent working for their employer – a violation of the law.  Many such cases have been the subject of class action lawsuits on behalf of entire groups of employees for whom compensation is owed under the law.

There are a number of factors that are considered to determine whether an employee is properly classified, including:

  • The relative importance of managerial duties
  • The frequency with which the employee exercises discretionary powers
  • The employee’s relative freedom from supervision; and
  • The relationship between the employee’s salary and the wages paid other employees for th kind of non-exempt work the supervisor performs

San Diego Wage and Hour Lawyer, Donald A. Green, is well-versed with employer wage and hour claims. If you feel you have not been properly paid, or your duties are such that you feel you should be classified differently, contact LODAG at (800) 994-2889. Employment law is a complex area that is extremely fact-specific, so considerable attention needs to be paid to the type of work, responsibilities, duties, and the like for a full and comprehensive evaluation. Call the Law Offices of Donald A. Green for your free consultation today.

Overtime and Breaks

“Non-exempt” employees are required to be paid for hours worked, with additional compensation owed for overtime. Similarly, employees are to be afforded mandatory breaks during their workdays. “Non-Exempt” employees are those paid on an hourly basis and not salaries, but often employees are misclassified as salaried just to avoid these compensation requirements. See also, Wage and Hour Claims.

Generally speaking, California Law requires that every employee is entitled to one day per seven day workweek, unless the employee works less than 30 hours per week. The employer must also pay overtime at the rate of one-and-a-half times the regular rate after 10 hours per day in a 40-hour workweek and double after 12 hours. An employee’s “regular rate of pay” is the rate paid to the employee during the normal, nonovertime workweek for which he or she is employed. Tips are not included in this rate.

There are also meal and rest break requirements. An employer cannot employ someone for a work period of more than five hours without providing an unpaid, off-duty meal period of at least 30 minutes. The first meal period must be provided no later than the end of the employee’s fifth hour of work. Employees can take on-duty meal periods only in certain limited circumstances. Employers must authorize and permit rest periods for all nonexempt employees whose total daily work time is at least 3.5 hours. These mandatory rest breaks must be offered at the rate of 10 minutes for every four hours worked, or “major fraction” thereof. Anything over two hours is considered by the courts to be a “major fraction” of four.

In 2012, the California Supreme Court decided an important meal and rest break case, Brinker Restaurant Corp. v. Superior Court. This case involved the question of whether employers must ensure breaks are taken or must simply provide them. This issue has been a significant source of litigation in both state and federal courts. The California Supreme Court ultimately ruled in Brinker’s favor on the most critical part of the decision – holding that employers do not have to ensure employees take their meal breaks. Once the meal period is provided, there is no duty to police meal breaks to ensure no work is being done. It is a blow to consumers in that employers can always claim they offered the break, but the employee refused to take it, even if the employer otherwise directly or indirectly prevents the employee under duress from actually taking the break.

If you feel you have denied proper pay or overtime, or paid meal breaks or rest times, contact San Diego Overtime and Breaks Lawyer Donald A. Green at the Law Offices of Donald A. Green, 800-994-2889, today for a free consultation and case evaluation. Alternatively, if you complete the form to the right, we’ll be happy to contact you to discuss your particular employment issue with you.