Wage & Hour
Most people go to work everyday without ever questioning their employers’ compensation practices. Alternatively, employers may outright fail to pay employee their due wages or fail to live up to promises to pay wages. Employees fail to realize that California has enacted strict wage and hour laws, under the California Labor Code and Industrial Welfare Commission (IWC) Wage Orders, guaranteeing them rights to fair pay. Without these laws, employers would produce more wealth and employees would take home less pay. The following are only a few of the most common wage and hour violations.
I. Overtime
The heart of many wage and hour disputes is the payment of overtime. An employee is entitled to overtime when she works more than 40 hours per week and more than eight hours per day. Employers despise the payment of overtime because it eats right into their profits. Consequently, many employers may simply not pay overtime or attempt to classify employees as “salaried” or “exempt” employees, hoping that they can make an end-run around paying overtime. However, California enacted technical laws articulating when an employer may pay salary and when it must pay overtime.
II. Minimum Wage
Sadly, many employees in California are not receiving the statutorily established minimum wage of $6.75 per hour. An employee may not waive this requirement under California law.
III. Meal/Rest Breaks
Generally, an employer must provide an unpaid meal break of at least thirty minutes when a non-salaried employee works more than five hours per day. Unless the employee is completely relieved of work during the meal break, however, the employer must continue to pay the employee during this time. If an employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid.
An employer must authorize and permit rest breaks to non-salaried employees of at least ten consecutive minutes for each four hours worked. Employees must be paid for their rest periods and an employer can require employees to take these rest breaks on its premises.
IV. Independent Contractors
Employers are sometimes tempted to classify employees as “independent contractors” so they can avoid paying overtime and minimum wages or providing meal and rest breaks. Although no specific definition of “independent contractor” exists, case law has chiseled out factors – the main one being control over the individual – to help determine who is an employee or independent contractor.
V. Illegal Deductions
Only in limited situations may an employer make deductions from an employee’s paycheck – taxes, social security, health benefits, union dues, etc. An employer may not reduce an employee’s wages or commissions to offset employee-caused losses – such as cash shortages, breakage or loss of equipment. Even if an employee owes an employer money, the employer may not unilaterally withhold part of the employee’s wages in order to repay the debt.
VI. Vacation Pay
In most circumstances, once an employee earns vacation time according to a company’s plan or policy, that time is vested and belongs to the employee. At separation of employment, an employer must pay the departing employee the pro rata cash value of any unused vacation time. Many “use-it-or-lose-it” provisions, allowing neither a carry-over of unused vacation nor payment in lieu thereof, are unacceptable under California law.
VII. Promise to Pay Wages/Failure to Pay Wages
A promise to pay a certain wage, bonus, or commission is a legally binding contract, particularly when the employee relies on the representation or promise. Evidence such as notes, records, or witnesses can help substantiate the claim. Additionally, clear failure to pay wages to an employee who is owed wages, can expose an employer to waiting time penalties (thirty days pay).
VIII. Retaliation
California has long recognized a strong public policy in protecting an employee’s entitlement to wages. Because of this, employers are forbidden from terminating, harassing, demoting, or otherwise taking any adverse action against an employee who makes a claim or complaint against an employer for wages owed. Remedies may include reinstatement of one’s job and reimbursement of lost wages and benefits. In addition, tort damages for wrongful discharge or other forms of retaliation may be available.
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If you feel that your employer has failed to pay you wages or has retaliated against you for making a claim for wages, you may be entitled to reinstatement, back wages, penalties, and interest. For more information, please consult the attorneys at Guenard and Bozarth, LLP.
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