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Overtime
Protection In Overtime pay is regulated by both state and federal
law. See 29 USC ' 207; 29 CFR ' 541 et seq.; Lab. Code ' 510 et seq.; 8 GENERAL APPLICATION OF OVERTIME LAW IN
Generally speaking under California Law employees are entitled to
overtime pay for working over 8 hours per day and for working over 40 per week.
Generally the overtime rate is one and a half, but when the employee work
more than 12 hours per day the employee is entitled to two times the rate. If
the employer refuses to pay overtime the employee may also be entitled to
penalties. In most cases the employee is not entitled to recover attorney
fees, but California Law helps protect workers by providing court discretion
in awarding attorney fees and costs, so the employee may be able to obtain
legal representation without having to come up with up front fees and costs.
Federal Law also provides for overtime regulations and applies in WHICH EMPLOYEES ARE COVERED UNDER OVERTIME LAW
Overtime laws apply regardless of how the employee is paid it does not
matter how the employee is paid it could be salary, commission, or piece rate.
There are few exceptions for some managerial, administrative, and
professional workers that are exempt from overtime requirements, but just
because the employee is a paid a salary does not mean the employee is exempt
from overtime. There are also a few over time pay exceptions for some
industries. Farm workers and other farm related industries are generally
allowed to exploit workers without overtime pay, but many professionals are
protected and entitled to overtime pay. Sometimes employers mis-classify workers and give them fancy titles for the
purpose of avoiding payment of overtime , but the title is not controlling,
it is the actual work the worker does that determine whether or not the
employee is entitled to overtime. The title of manager is not an automatic
exemption from over time pay. The employee has to be employed as a manager
and not just have the title of manager. If the employee spends more than 20%
of work time doing hands on work instead of supervising work, the employee is
more likely than not entitled to overtime pay. Under PREPARATION TIME The employee may be owed overtime if the employee is not paid prep time. If the prep time is part of the business, such as time spent sharpening knives before or after work at a meat packing shop and the time is substantial, then it may count as work time and qualify for exceeding the 8 hours and count as overtime. A few minutes or few seconds may be disregarded and not counted to determine if the employee qualifies for overtime. Ten minutes is not considered de minimis time and may be compensable as overtime. TRAVEL TIME
Travel time from home to work is generally not compensable and not
counted towards a possible overtime wage claim. Travel time may be
compensable if travel is a one time special trip to another city or another
job site during the workday, or travel to retrieve tools,
or other similar types of special travel and would count towards an overtime
wage claim. Travel time during work or at employer’s direction is
generally compensable work time and counted towards determining overtime pay. DOUBLE TIME
Overtime has to be paid at two times the regular hourly rate on the
seventh day after the first eight hours of work for employees working seven
days straight. TIME OF OFF IN LIEU OF OVER TIME PAY
Under INDEPENDENT CONTRACTOR vs EMPLOYEE
Sometimes employers tell employees they are independent contractors
and have the employee sign an agreement to avoid having to pay overtime and
benefits, but the employee may still be an employee. Even if there is a
written agreement for an independent contractors,
the agreement is not controlling and the employee may quality for overtime
pay. It all depends on how the employee is treated and what kind of work the
employee performs. A simple question is the employer trying to avoid overtime
pay and benefits or can the employee really work for several people doing the
type of work the employee does. Speak with a or Email me : Arnold@ArnoldHernandez.com . Right To Sue Under California Law, employees have the right to file a claim for unpaid overtime wages through a State Agency, but they also have the right to file a lawsuit. An employee may hire a lawyer to make a claim for unpaid overtime pay and if the employee prevails in court the employer not only has to pay the employee unpaid overtime pay, but the employer also has to pay reasonable attorney fees plus all costs associated with litigating the case such as depositions and court filing fees. Because of this state law in most cases we are able to offer contingency fee based representation to employees with no upfront fees or costs. Speak with a Speak with a Speak with a Speak with a Speak with a Speak with a Speak with a Speak with a Speak with a Speak with a Speak with a Speak with a |
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