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BUSINESS LAW: WAGE
& HOUR and
OVERTIME CLAIMS
All Workers in California have the right to be paid a minimum
wage of not less than $6.75 per hour, and have the right to overtime
pay for hours worked more than 8 hours in any day. This applies
regardless of the immigration status of a worker. This is
a right that cannot be given up by an employee, even if the employee
has agreed to take a lower wage than the law requires. Employers
MUST follow the law.
Our firm prosecutes California employers on your
behalf for unpaid wages, unpaid overtime, improper employee classification
and improper wage or commission deductions and assists
our clients to achieve compliance with the minimum wage, overtime,
and record keeping requirements of all federal and state wage and
hour, and prevailing wage laws.
Nonexempt California workers are entitled to
be paid time and one-half their regular hourly rate for all hours
worked over 8 in one day, and double time for hours worked over
twelve hours in a day. If you are not paid hourly, but paid a weekly
or monthly salary, the regular hourly rate is determined by dividing
your salary by the total number of hours you work in a day, week,
or month.
No matter what your pay schedule, you must be
paid at least $6.75 per hour for every hour you work, no matter
what - and for qualifying hours, you must be paid overtime pay at
the applicable rate - no matter what. That's the law and that's
your legal entitlement.
Wages must be paid on time and in full every
pay period and upon termination of your employment.
If your employer does not comply with the state
or federal labor laws, you have the right to bring legal action
against them, to make them pay all unpaid wages,
penalties, interest, and in some cases, attorneys’ fees.
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Employees should be aware if they are being
subjected
to illegal practices that entitle them to back pay.
The most common violations by employers are:
1. Failing to Pay Final Wages in a Timely Fashion
An employer must pay all wages earned at the time
of discharging an employee or within 72 hours after an employee
quits without notice. An employer who willfully fails to do so may
be required to pay a penalty of up to 30 days wages.
2. Excluding Accrued Vacation Pay from Final Wages
All accrued vacation pay must be paid at the time
of departure, whether that employee is discharged or quits. Vacation
pay that has not been accrued need not be paid.
3. Failing to Provide Itemized Wage Statements
Generally, employers must furnish itemized wage
statements showing the employer's name and address, employee's name
and social security number, pay period dates, gross/net wages, deductions,
total hours worked, and all applicable hourly rates and the corresponding
number of hours worked at each rate. Penalties
may be assessed for each intentional failure to comply. Employers
must also keep these records and permit current or former employees
to copy them upon reasonable request.
4. Failing to Permit Meal/Rest Periods
Employees working more than 5 hours per day must
be provided 30-minute meal periods; except that if the total work
period per day is no more than 6 hours, the meal period may be waived
by mutual consent. Employees required to work more than 10 hours
per day must be provided a second 30-minute meal period; except
that if the total work period per day is no
more than 12 hours. The second meal period may be waived but only
if the first is not. Limitations on meal periods must not be too
restrictive, otherwise they will be considered time worked and possibly
subject to overtime pay. Employees must also be given a paid 10-minute
rest period to be taken in the middle of each 4-hour period. Substantial
penalties may be assessed for each failure to comply.
5. Failing to pay Split Shift Premium Pay
Employer's willful violation of the provisions
of Wage Order and Cal. Code Reg., Title 8, section 11050 (4)(c),
which require split shift premium pay (one hour's pay) for a work
schedule, which is interrupted by non-paid non-working periods established
by the employer.
6. Failing to Reimburse Employees For Costs Of
Uniform
Certain retail stores and restaurants unlawfully
force their employees to purchase uniforms from the employer or
require uniforms for which the employees are not reimbursed, in
violation of the California Labor Code.
7. Taking or Receiving Tips
No employer or supervisor may collect, take or
receive tips left for its employees by patrons. However, tip pooling
among co-employees is proper.
8. Improperly Calculating Overtime
Generally, employees working over 8 hours per day
or over 40 hours per week and the first 8 hours worked on the seventh
day of work in one workweek must be compensated at 1˝ times their
hourly rate. Any work in excess of 12 hours per day and any hours
worked in excess of 8 on the seventh day of work in one workweek
must be compensated at twice their hourly rate. Employers who violate
overtime provisions may be subject to substantial penalties.
9. Mis-clasifying Exempt Employees
Some salaried employees who are classified as "managers"
are improperly classified as exempt. To be properly classified exempt,
a "manager" must generally be paid a salary equivalent to at least
twice the minimum wage, have specified customary supervisory authority
over two or more employees, customarily exercise independent discretion
and spend more than 50% of the time performing managerial duties.
Improperly classified employees may be entitled to overtime compensation
and may recover unpaid overtime for the last 3-4 years.
10. Failing to Pay Expense Reimbursement
An employer who fails to reimburse employees for
expenses incurred in carrying out their employment is liable to
the employee for the amount of all necessary expenses within the
scope of employment, interest, attorney's fees and costs. The employer
also may not debit an employee's pay to cover and part of another
employee or staff member's salary or expenses.
11. Failing to Maintain Policies
Against Discrimination and Harassment Employers
must maintain properly drafted written policies against discrimination
and harassment. Such policies must provide employees with a proper
complaint and investigation procedure and must be enforced diligently.
Having appropriate written policies in effect may relieve employers
from substantial punitive damage liability in employee lawsuits,
but if no such written policies have been drafted, the employer
may have substantial liability on the ground of failing to maintain
policies.
12. Failing to Accommodate Legally Recognized Disabilities
Employers must make reasonable accommodations to
employees with legally- recognized disabilities that are known to
them. Generally, employees with physical or mental impairments that
limit their ability to perform a major life activity qualify for
accommodation. In such cases, reasonable accommodations must be
afforded, unless it would cause undue hardship upon the employer.
However, it is important to note that not every condition qualifies
for legal protection. The law is quite complex in this area.
13. Refusing to Allow Appropriate Time off under
FMLA
The Family and Medical Leave Act requires employers
with 50 or more employees to permit up to 12 weeks of unpaid leave
during a 12-month period to care for an employee's "serious health
condition," as defined by law, or that of a spouse, child or parent,
or to care for a newborn or a child placed with the employee for
adoption or foster care. However, the employee must have been employed
at least 12 months at a facility with 50 or more employees within
75 miles and must have worked at least 1,250 hours during the 12-month
period immediately preceding the leave.
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UNLAWFUL WORKPLACE
HARASSMENT & DISCRIMINATION
California law requires
employers to maintain a work environment free of harassment & discrimination
based on an employee's race, religion, color, national origin, ancestry,
disability, medical condition, marital status, sex, age, pregnancy
or sexual orientation.
California specifically mandates immediate and
appropriate corrective and investigative action by employers. Not
only must employers stop the unlawful conduct, but must launch immediate
investigations into allegations raised. Upon having reasonable knowledge
that harassment or discrimination based on one or more of these
target groups is occurring, an employer is required to take reasonable
steps to protect its employees from further acts of harassment &
discrimination. If they do not, the employer may be liable for damages.
Small business owners carry the same exposure to
harassment & discrimination lawsuits as do large companies. Employer
liability in harassment & discrimination lawsuits can be substantial.
California permits recovery of Actual Damages, such as lost wages
and medical expenses, Emotional Distress Damages, Punitive Damages
and Attorney Fees. The amount of Punitive Damages available to the
employee largely depends upon whether the employer had actual or
constructive notice of unlawful conduct and the appropriateness
of the employer's actions in preventing and investigating the unlawful
conduct.
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WRONGFUL TERMINATION
& RETALIATORY DISCHARGE
Generally, if an employee is an "at-will" employee
it is legal in California for private, non-governmental employers
to fire them without having a good reason to do so. This is called
"employment at-will" and is governed by California Labor Code Section
2922.
However, notwithstanding the "at-will"
provision in the law, there are many illegal reasons for which an
employee can be fired, even if the employment is "at-will",
reasons that trigger a wrongful termination case even if you are
an "at-will" employee. When firing employees, employers
often try to hide behind the "at-will" rule when the real
reason for the termination is an illegal or unlawful motive such
as racial discrimination, sexual harassment, or in retaliation for
being a whistleblower.
It is also illegal to fire an employee without
good cause if there is an express or implied contract requiring
good cause for termination.
Equal Pay Under the Equal Pay Act (EPA)
Employers are barred from paying women less than
men if they are working on jobs that require equal skill, effort,
and responsibility, and if those jobs are performed under similar
working conditions. An employer may not retaliate against a female
worker through firing or demotion because an EPA charge was initiated.
Wrongful Termination & Retaliatory Discharge
If you have been fired or demoted because of an
"illegal reason" you have been wrongfully terminated.
An "illegal reason" may include discrimination
based on race, age, sex, religion, marital status, national origin,
or a disability. Wrongful termination or wrongful discharge cases
include retaliatory discharge, workers' compensation discharge,
and whistleblower litigation.
Whistleblower Litigation
The term "whistleblower" has many meanings in different
contexts. There are many types of conduct which employment lawyers
might refer to as forms of "whistle blowing." Certain laws provide
protection against retaliation for those who report violations of
laws, participate in investigations, or serve as witnesses in particular
types of cases. Whistle blowing can consist of reporting crimes
or fraud to government agencies or to management. Whistle blowing
can also consist of serving as a witness in many different types
of cases, or assisting in investigations of many different types.
If you are a current or former employee of a business,
which has received money directly or indirectly from the United
States government, you are eligible to bring a federal whistleblower
lawsuit and receive a percentage of the recovery of any money falsely
obtained by the business/employer from the United States government.
Originally, the Federal False Claim Act (31 USC
§§ 3729-3733) was enacted in order to get individuals to help the
government stop rampant fraud being committed by companies providing
inoperable rifles, spoiled food, and selling horses over and over
to the United States government during the Civil War. The government,
under the Federal False Claims Act, provides significant financial
incentives for individuals to come forward and report the information
revealing fraud on the United States government.
Essentially, the Federal False Claims Act allows
citizens who are able and who have knowledge of fraud against the
government to play an active role through their attorney to bring
justice against those businesses that overcharge or cheat the government
by filing what is called a Qui Tam lawsuit.
The statute of limitations on bringing such a false
claim lawsuit (Qui Tam) is either six (6) years from the date on
which the violation is committed or three (3) years after the date
when the facts material to the right of bringing the lawsuit are
known or reasonably should have been known to the official of the
United States charged with the responsibility to act in the circumstances,
but in no event, more than ten (10) years after the date on which
the violation is committed, whichever occurs last.
There are a number of different types of cases
that can be brought against such "Qui Tam" businesses who defraud
the government, although the cases seem to fall into certain specific
categories such as: (a) Medicare fraud; (b) defense contractor fraud;
(c) environmental noncompliance; (d) bid rigging with actual false
claim; (e) agricultural supplements; and (f) overcharging and/or
product substitution and/or falsifying services performed.
Qui Tam claims have also been used to attempt to
curb or stop fraudulent health care billing.
False billing includes: billing for services or
products not actually given or provided; inappropriate health coding
misrepresentation; billing for medically unnecessary services or
products; submitting duplication of medical bills; falsifying records
to obtain payment including changing signatures, dates or adding
information to the medical records.
Examples of false reporting (which occurs by institutions
such as home health agencies, hospitals and nursing homes) are inflating
costs for providing services or medical equipment; sending in patient/staffing
data or statistics to increase a share of government payouts from
Medicare or Medicaid; seeking reimbursement for patient care, when
patients do not exist, under false names, or additionally, kickbacks
(e.g. getting cash payments in return for referrals of patients
or bartering arrangements in exchange for such referrals) for which
compensation is received ultimately from the United States government
under the Medicare or Medicaid program.
A current (or former) employee who "blows the whistle"
on an employer is usually the most frequent individual who seeks
to bring a Qui Tam or False Claims lawsuit. This is so because such
individual has inside information not otherwise available to the
public, and often such employee if no longer working with the business,
may have been fired or retaliated against for bringing to light
to the business the fraud and trying to correct it prior to his
or her termination.
Frauds perpetrated on the United States government
can be made public in the proper manner by individuals with personal
knowledge of the particular scheme utilized by the employer to defraud
the government.
The Federal False Claim Act provides significant
financial incentives for such individuals to step forward with the
advice of their counsel.
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FREQUENTLY ASKED QUESTIONS (FAQ's):
Question: Are all workers, including undocumented
workers, protected by California Labor Laws?
Answer: Yes. All California workers - whether or
not they are legally authorized to work in the United States - are
protected by state laws regulating wages and working conditions.
Your employer cannot force you to accept less than
the minimum, or overtime pay, even if they have you sign a written
contract saying you will accept less. Such a contract is not legally
enforceable against you, and the employer can be punished for having
such a contract.
All workers who have performed services
for an employer
in California have the right:
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To receive at least a minimum wage of $6.75
per hour for every hour they work;
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To earn overtime pay -- with some exceptions
-- after working more than eight hours in one day;
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To earn overtime pay -- with some exceptions
-- after working more than 40 hours in one week;
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To file wage claims with the State Labor
Commissioner if they believe their employer has violated
state or federal wage and hour laws;
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To file workplace safety and health complaints
with Cal/OSHA, the state’s workplace safety and health program.
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To work in an environment free from retaliation
for exercising their rights.
Question: What if I can't afford to
pay attorneys fees or the costs of a lawsuit?
Answer: The Law Offices of David D.
Murray represents employees in wage claims and overtime issues on
a "Contingency Fee" basis. That means there are no attorneys
fees due until we recover your wages, damages and other penalties.
Then, we deduct our attorneys fees and costs from the amount we
collect from the employer. In fact, we may even be able to obtain
additional attorneys fees when the law allows. But if we do not
collect money for you, we do not get paid. We will fight for you!
Please see our Contact
Page for our email address.
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