Overtime Claims in California

Overtime Protection In California

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 Cal. C. Regs.̕ Section' 11010 et seq. The employer is subjected to whichever law provides the most coverage to the employee. These statutes provide wage overtime laws and these are mandatory overtime rights. These Federal overtime laws and California overtime laws are the overtime laws California employers and employees need to be concerned about.

GENERAL APPLICATION OF OVERTIME LAW IN CALIFORNIA

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 California, but in many instances provides lesser protection for workers. In general under Federal Law the employee is not entitled to overtime unless the employee works more than 40 hours per week, but employees are entitled to overtime protection under the laws that provide the greatest protection.

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 California law overtime pay may accrue as far back as the last four years, but penalties for non payment of overtime may go back a much shorter time, in some instances penalties may only apply for 30 days.

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 California law the employee is permitted to take time off in lieu of receiving over time pay, but it has to be at the same rate as overtime pay. The employee is entitled to one and half hours of time off for each hour of overtime the employee work. In addition the employee is also required to have the following: There has to be a written agreement to substitute over time pay for time off; the employee cannot get more than 240 hours of time off in lieu of overtime pay; the employee works no less than 40 hours per week; the employee makes a written request for time off as a substitute for overtime compensation.

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.

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 San Diego Personal Injury Attorney Today

San Diego (619) 573-4501 begin_of_the_skype_highlighting (619) 573-4501 end_of_the_skype_highlighting San Marcos (760) 471-4624