Category: Wage & Hour Rights

Winning Your Claim for Unpaid Overtime Wages: Here Are Six Tips

Unpaid Overtime Laws

California’s overtime law requires employers to pay those employees who are eligible twice their rate of pay when they have worked more than 12 hours in one workday or more than eight hours on their seventh consecutive day of work. Employees who qualify for overtime in California are paid 1.5 times their normal rate when they work more than eight hours in a workday and more than 40 hours in one workweek.

They also earn 1.5 times their normal wage for the first eight hours of their seventh consecutive day of work. In order to be eligible to get overtime pay, employees must be over the age of 18, and employed in a non-administrative or non-professional job. Employees who are paid hourly or daily rates or are salaried may also be able to qualify for overtime pay.

Overtime Laws in California

Overtime laws in California are not as simple as they may seem. Here are a few tips we hope you will find useful when it comes to winning your unpaid overtime claim:

Record the number of hours you worked. Your employer may not have kept up with the number of hours you actually worked. This could be because your employer inaccurately classified you as an “exempt” or “salaried” employee. In some cases, employers also misclassify employees as “independent contractors” in order to avoid paying them sick and vacation pay and medical benefits.

Do not let any of this stop you from maintaining an accurate record of the hours you’ve worked. If you can provide a detailed and accurate record of the hours you’ve worked, your claim will be significantly strengthened. You may keep track of your hours using a notebook, computer or whatever method works best for you.

Keep track of any work you did off the clock. It is becoming increasingly common for employers to require employers to work “off the clock.” This is just a nicer way of saying that they want you to do the work but won’t pay you for it. However, if you are doing this work on site and doing something that benefits the employer, you should be getting paid for it. Some examples of “off the clock” work include but aren’t limited to any type of “prep work” such as filling out paperwork, putting on a specialized uniform or getting equipment or tools ready. It is important that you keep track of all the hours you work. Log the hours you spend doing prep work as well.

You are not bound by labels. One strategy commonly used by many employers to dodge paying overtime is to tell employees they are “exempt” from the Fair Labor Standards Act. This may be because they are paid a salary (as opposed to being paid hourly) or because they are independent contractors. In some cases, employers will misclassify an employee as a supervisor or manager even though they may be taking orders from other supervisors most of the time. Do not buy into these labels. If you believe that you are not being paid overtime, it is important that you contact an experienced California wage and hour lawyer to find out if you are entitled to overtime compensation.

Make an honest assessment of your job duties. Generally speaking, if you spend a vast majority of your time working under a supervisor, you don’t have much discretion when it comes to how and when you do your job. If you spend much of your time doing manual labor, you should be classified as “non-exempt,” which makes you eligible to receive overtime pay.

If you do not have supervisory duties, you should be getting paid by the hour and receive time-and-a-half compensation for all hours worked over 40 per week. If you believe your employer is improperly denying you overtime pay, an experienced employment lawyer can help you assess your job duties and determine your eligibility to receive overtime pay.

Be sure your voice is heard. Many employees are afraid to stand up to their employers because they worry that their employers might retaliate. Many are not aware that state and federal employment laws forbid employers from retaliating against their employees. But, this is ultimately a choice you have to make. When you blow the whistle on an employer who is violating the law, you may be helping others in your company as well.

It is very likely that others in your company are not getting paid the wages they are due either. In some cases, speaking up may help correct the problem. If you have suffered retaliation as a result of objecting to your employer’s unfair and unethical practices, contact an experienced Orange County wage and hour lawyer right away to obtain more information about your legal rights.

Do not post on social media or online. If you have a pending claim, do not post details about it on social media or anywhere online. It is a well-established fact that nothing is private online. Anything you say or post online can and most likely, will be used against you. It would be in your best interest to suspend all social media accounts, at least temporarily, until your wage claim is resolved. Please remember that anything you post, including photos and videos, could be used against you in these types of claims.

Contact an experienced lawyer as soon as possible. A majority of claims for unpaid overtime have a two-year statute of limitations. This means that you may not be able to file a claim if the statute of limitations expires. As time passes, you may lose your right to claim back wages. It is important that you act in a timely manner.

While you may be able to file an individual claim, employees in such cases may also be able to band together and file a class action lawsuit against employers. This is particularly true in cases where employers have failed to pay overtime wages to a number of employees. Having an experienced Orange County employment lawyer on your side will help ensure that you avoid making mistakes that could jeopardize your claim, help you obtain fair compensation for your losses and hold your employer accountable for their potentially illegal actions.

Here Are Eight Signs That You May Have Been Misclassified as a 1099 Contractor

Misclassification of employees in California often occurs not as the result of some mistake or misunderstanding, but rather, by design. Employers engage in this illicit practice because they attempt to dodge paying employees critical benefits and offering them the protections they are entitled to under the law such as minimum wage, overtime pay, family and medical leave, unemployment benefits and safe workplaces.

Employees usually lack sufficient information to understand that they are in fact being exploited. There is a lot of confusion regarding who should be placed on a 1099 status or treated as an independent contractor as opposed to a full-time employee. Many people tend to believe that the decision to classify someone as a contractor or as an employee is based on the employer’s discretion. This is an incorrect assumption.

When an individual is classified as a contractor, he or she takes on more of their tax burden compared to others who are classified as employees. Typically, employees pay a portion (about half) of their Social Security and Medicare taxes while their employers pick up the rest of it. Contractors, on the other hand, face the burden of the entire tax bill including federal and state income tax, which is usually withheld from employees’ paychecks. The Internal Revenue Service has very specific guidelines to differentiate between who is an employee and who is a contractor.

Here are some of the signs that you may have been misclassified as a 1099 contractor:

  1. You do not submit a monthly invoice for work done.

Full-time employees get paid, typically on a bi-weekly basis, by their employers. On the other hand, independent contractors bill the companies to which they provide their services. This type of billing is usually done on a weekly, biweekly or monthly basis, based on a verbal or written agreement between the contractor and the company. Some contractors bill hourly and others may invoice based on work done for a project. If you are getting a paycheck each month or biweekly, and are not being allowed to invoice the company for work done, that should raise a red flag regarding misclassification.

  1. The person whom you work for refers to himself or herself as your “boss” or “supervisor.”

Independent contractors are their own bosses. They do not “work for” or “report to” anyone. This is one of the biggest perks of being self-employed or working as an independent contractor instead of being full-time on a company’s payroll. Independent contractors enjoy considerable autonomy in terms of how they use their time and to whom they offer their services. If the person to whom you provide your services refers to himself or herself as your “boss,” that should tell you that you are expected to behave like an employee as opposed to an independent contractor.

  1. You have a specific schedule and have a supervisor who tells you when to report to work and when to take your meal breaks.

Independent contractors are not bound by a specific schedule. In fact, contractors make their own schedules. While they may work with someone in the company or might provide the deliverables to them, they don’t report to a “boss” or “supervisor.” The company also cannot tell contractors when or when not to take breaks. Once again, a contractor’s schedule is his or her own. The company also cannot tell you, for example, when you can or can’t take your vacation time.

  1. Other people in the company who perform the same job you do, are classified as W2 employees.

Often times, companies will classify individuals as contractors instead of W2 employees simply to avoid paying them crucial benefits such as sick pay, vacation time and medical benefits. If you find that others working in the company do pretty much what you do but are classified as W2 employees, then you should ask whether you may have been misclassified as an independent contractor so the company can save some money.

  1. The company requires you to wear a uniform or asks you to drive a company vehicle.

Contractors typically should not be required to wear uniforms bearing the company name and/or logo. This also applies to requiring you to drive a company vehicle while on the job. In most cases, only employees who are on the company’s payroll may be required to wear company uniforms or operate company-issued vehicles. If these are some of the things you are being required to do, you may have been misclassified as a 1099 contractor.

  1. You are using a company-issued computer and have a company email address.

Contractors typically use their own work equipment such as laptops and cell phones. If the company issues their own computer or cell phone or if you have a company email address or business card, those may all be telltale signs that you are being misclassified as a contractor.

  1. You are required to attend meetings or training sessions.

One of the other signs that you should be classified as a full-time employee as opposed to a 1099 contractor is if your client requires that you attend regularly scheduled meetings or makes training sessions mandatory. When they require training, they give the impression that you need to be taught how to perform a job. When that occurs, the nature of the relationship changes. There is nothing abnormal about a contractor meeting with a client to go over the specifics of a job. However, if you are required to attend regular meetings with the rest of the company’s team, there is a possibility that you have been misclassified.

  1. You have little control over how and when you complete your work.

Typically, independent contractors can choose how they complete the work as long as they finish the work on time and to the client’s specifications. In addition, independent contractors also have the freedom to take on other clients. If the company is imposing limitations on what you can or can’t do, that should raise a red flag regarding misclassification.

If you suspect you have been misclassified as a 1099 contractor, please contact our experienced Orange County employment lawyers to obtain more information about pursuing your legal rights.

Japanese Employee Dies from Exhaustion – How ‘Salaryman’ Culture Affects the Workforce

Japanese Employee Dies from Exhaustion – How ‘Salaryman’ Culture Affects the Workforce

The circumstances surrounding the death of 31 year old Miwa Sado have just been made public, though she passed away in 2013. Sado was a political reporter, and an overworked one at that – which it has now been revealed was the cause of her death by heart failure. NHK (Sado’s former employer) reported that she had worked about 159 hours of overtime in the month before her death. This means that she was working in just one week what most full time employees clock in a full (two week) pay period.

Stories such as Sado’s are not unfamiliar to Japanese culture – they even have a special term for it, “karoshi” which translates to “death by overwork”. The term was originally coined in the 1970s as Japan’s economy boomed. Labor lawyers and civil rights groups have been pressing for legislative change since the 1980s, but the trend has continued in spite of this.

In December 2015, a similar tragedy took place. Matsuri Takashi, a 24 year old employee of Dentsu, an advertising agency, jumped to her death from the company dormitory. “Ms. Takashi’s death was caused by serious depression triggered by overwork and harassment,” Hiroshi Kawahito, a lawyer representing her case, told CNN Money. In the month leading to her death, Takashi clocked about 105 hours of overtime, according to investigators. After concluding its investigation, Dentsu announced that they would be capping overtime hours to a maximum of 65 per month.

But how do work hours measure up across different countries? According to the International Labour Organization, Americans work an average of 137 hours more per year than Japanese workers. The United States is arguably the most overworked developed nation in the world – and it comes down to more than just hours worked per week.

  • The United States is the only industrialized country which has no legally required annual leave program – even Japanese workers are required to receive 10 days off per year
  • The United States is not one of the 134 countries which sets a limit on maximum hours worked per week
  • There is no federal law requiring paid sick days in the United States
  • The U.S. is the only country in the Americas without paid parental leave (maternal or paternal) to care for/bond with new children – the average in most other countries is 12 weeks of paid leave and 20 weeks of paid leave throughout Europe.

 

Sources:

https://20somethingfinance.com/american-hours-worked-productivity-vacation/

https://www.usatoday.com/story/news/world/2017/10/06/japan-struggles-karoshi-death-overwork-after-deaths-2-young-women/738915001/

http://money.cnn.com/2017/10/05/news/japan-work-overwork-woman-dies-karoshi/index.html

What a Trump Presidency Might Mean for Family Leave Laws

With the Electoral College officially selecting Donald J. Trump as the next President of the United States, many are now wondering what changes may take place upon his inauguration. Particularly relating to employment, you can expect to see many changes including family leave time for workers.

Trump has proposed a plan which would give women who recently gave birth (note, not all new mothers) 6 weeks of partial paid leave through an expansion of unemployment. While this may initially sound great, upon inspection of the plan there is much to be desired. The first issue arises from the source of funding for the program, which is supposed to be unemployment. This is a social service which is grossly underfunded as is, without adding the element of maternity leave. Because of the lack of funding, it is estimated that women on this plan would only receive approximately 30% of their weekly wages.

Other glaring issues with the program include the length of time offered. Six weeks is far below the recommended minimum of 12 weeks for parental bonding time after a child is born/adopted. This brings us to the next issue – the coverage would only be available to women that just gave birth. This means that fathers and adoptive/foster parents are ineligible to the benefits.

There are alternatives to Trump’s proposed plan, including a bill sponsored by Connecticut Congresswoman Rosa DeLauro and New York State Senator Kirsten Gillibrand called the FAMILY Act. The acronym stands for Family and Medical Insurance Leave Act, and would require all employers (regardless of company size) to provide employees (regardless of age/duration of employment) with 12 weeks of paid leave for various reasons. It would not only provide coverage to women that just gave birth, but also to new fathers, adoptive parents, foster parents, or people needing to take time off for their own serious medical condition/to care for a family member with a serious medical condition. In contrast to Trump’s plan which would be through unemployment, FAMILY would be run by a new office of the Social Security Administration. It would be funded by small contributions by employees and employers as a payroll deduction. This may be a concern upon first hearing about the plan, but the deduction is extremely minimal – 2 cents for every $10 earned by the worker. It would enable participants in the program to make up to 66% of their regular weekly wages during their time away from work. Both insurance benefits and administrative costs would be covered by the contributions. In order for the plan to work, all employees would be required to participate in the contribution if the bill is passed (you can’t opt out). If people were able to opt-out, the structure of the funding would be changed drastically, making the deductions too great for those that want to participate.

The FAMILY Act had been gaining support in Congress, and was expected to pass under a Hillary Clinton administration. However, now that Republicans will be controlling both the White House and Congress, the bill will most likely be facing bigger impediments than it did previously.

In order to encourage opponents of paid family to support the policy, a non-profit organization called PL+US intends to put the pressure on nay-sayers. IN addition to a possible political action committee, PL+US will be launching a campaign highlighting companies with excellent paid leave policies – as well as highlighting companies with the worst leave policies.

Currently, the only national family leave program is The Family & Medical Leave Act of 1993, which provides up to 12 weeks of unpaid leave to certain employees to care for themselves or a family member in the event of serious illness. However, the fact that the leave is unpaid is not the only problem with the program. It also comes with many stipulations which leaves a majority of workers ineligible for the time off. The first requirement for an employee to be eligible for leave, is that they must work for a “covered employer”. Covered employers are those which a) employ at least 50 people for 20 or more workweeks in the current or preceding calendar year (private sector) or b) are a public agency (regardless of how many employees). The next qualification is that the employee must have worked for the employer for at least 12 months, and given at least 1,500 hours of service during the past 12 months. Finally, the employee must work at a location where the employer has at least 50 employees within a 75 mile radius. In some situations, the FMLA leave may be taken intermittently as needed.

While it is impossible to say at this point what may happen in the coming year, one thing is clear – big changes are coming to family leave laws. Hopefully, they will be for the better.

Sources:

https://www.dol.gov/general/topic/benefits-leave/fmla

http://www.nationalpartnership.org/research-library/work-family/paid-leave/family-act-fact-sheet.pdf

http://www.nationalpartnership.org/issues/work-family/family-act.html?referrer=https://www.google.com/?referrer=http://qz.com/839086/after-trumps-election-and-clintons-loss-supporters-of-a-paid-parental-leave-bill-in-congress-seek-fresh-help-from-republicans/

http://qz.com/839086/after-trumps-election-and-clintons-loss-supporters-of-a-paid-parental-leave-bill-in-congress-seek-fresh-help-from-republicans/

http://thehill.com/blogs/pundits-blog/healthcare/309533-congressional-leaders-should-reject-trumps-maternity-leave

 

wage

Wage case against McDonald’s continues…

Yet another McDonald’s franchise is in the news again for court drama. This time, the case is regarding a wage and hour class action lawsuit (ref: wage and hour lawsuit) against a chain of 16 locations in Pennsylvania. The case was initially filed back in 2013, after an employee quit due to the outrageous fees associated with the chain’s mandatory pay card system. After quitting, she called a law firm to see if the practices were legal – which they weren’t.

The issue arises from the employers (owners Albert and Carol Mueller) requiring non-managerial employees to accept payment via a JP Morgan & Chase pay card, rather than being issued an itemized check/cash. This violated the Pennsylvania Wage Payment Collection Law (WPCL), which states that, “wages shall be paid in lawful money of the United States or check”. Employers will sometimes utilize a pay card system in order to avoid costs associated with printing and distributing checks, which can be expensive. Cash is not usually a practical form of payment for established businesses. It’s difficult to track and itemize. Another reason employers may be shifting towards the option of pay cards, is that banks may offer incentives to employers for providing them with new customers, aka the employees.

The courts reasoned that the pay cards are not “lawful money”, though the employers insisted it is a “functional equivalent”. However, the court stated that it was not a “functional equivalent” due to the fees that could be incurred for various reasons such as inactivity. The class action representative, Natalie Gunshannon, chose not to activate her pay card after reviewing the hefty fees, which included $1.50 per ATM withdrawal, $10 per month after 3 months of inactivity, 75 cents per online bill payment, and $1 each time they checked the balance. Additionally, users of the cards were allotted only one free over-the-counter withdrawal per deposit. After the initial withdrawal, a $5 fee was incurred each subsequent time. “I tried to work with the company. They refused. I tried the main office in Clarks Summit. They refused,” Ms. Gunshannon said. “I never activated the card. I refused the fees. I just want it to be fair.” An expert witness in the case stated that between the fall of 2010 and the summer of 2014, the employees were subject to a collective estimate of 47,000 fees.

While this case is set in Pennsylvania, it would most likely fare similarly here in California. The DLSE has opined that pay cards can be legal forms of payment so long as they are voluntary on the part of the employee. This means that the employee must have the option to receive a check or other form of payment if they would prefer. The DLSE states that the alternative form of payment must be “easily turned into cash” without a fee. Because the employees in the Pennsylvania case were not given the option to an alternate form of pay other than the card, the system would still be considered illegal in California. Then of course there is the issue with the fees, which also would be considered unlawful and cause to bring suit or request reimbursement.

An inquiry to the DLSE on this subject was answered back in 2008. Carl Morris and Daniel Schwallie asked whether their payroll services complied with California labor laws. The letter cites California Labor Code section 212, which reads:

“No person, or agent or officer thereof, shall issue in payment of wages due, or to become due, or as an advance on wages to be earned:

(1) Any order, check, draft, note, memorandum, or other acknowledgment of indebtedness, unless it is negotiable and payable in cash, on demand, without discount, at some established place of business in the state, the name and address of which must appear on the instrument, and at the time of its issuance and for a reasonable time thereafter, which must be at least 30 days, the maker or drawer has sufficient funds in, or credit, arrangement, or understanding with the drawee for its payment.

(2) Any scrip, coupon, cards, or other thing redeemable, in merchandise or purporting to be payable or redeemable otherwise than in money.

(b) Where an instrument mentioned in subdivision (a) is protested or dishonored, the notice or memorandum of protest or dishonor is admissible as proof of presentation, nonpayment and protest and is presumptive evidence of knowledge of insufficiency of funds or credit with the drawee.

(c) Notwithstanding paragraph (1) of subdivision (a), if the drawee is a bank, the bank’s address need not appear on the instrument and, in that case, the instrument shall be negotiable and payable in cash, on demand, without discount, at any place of business of the drawee chosen by the person entitled to enforce the instrument.”

Sources:

http://www.dir.ca.gov/dlse/opinions/2008-07-07.pdf

http://www.employmentlawdaily.com/index.php/news/mandatory-payroll-debit-card-violates-pennsylvania-wage-payment-law/

https://thinkprogress.org/after-ruling-that-mcdonalds-can-t-pay-workers-in-bank-cards-the-bank-pays-up-79e8661e1d95#.5nzbjtqoc