Overtime and Unpaid Wages

Unpaid Overtime Pay
Most employees in California are entitled to overtime pay at a premium rate based upon the number of hours worked. For example, an employee may be entitled to the following:

• one and one-half times their regular hourly pay rate for (1) work in excess of 8 hours per day or 40 hours per week, and (2) for the first 8 hours worked on the seventh consecutive day worked; and
• two times the regular rate of pay for (1) work in excess of 12 hours in a day, and (2) for all time after the eighth hour on the seventh day worked.

If you have any questions about overtime wages, feel free to call us at 415.434.3400 for a consultation with one of our attorneys, or contact us online.  Workers who have been wrongly denied overtime pay are entitled to recover not only their actual unpaid overtime wages due, but in addition may receive reasonable attorneys' fees, costs, interest and substantial penalties. Federal law also permits workers to recover additional 'liquidated damages' equal to the amount of overtime wages owed. State and federal overtime regulations are often complex and confusing, and employers often misclassify employees, intentionally or accidentally, which results in a failure to pay overtime wages.

Misclassified as “Exempt” from Overtime Pay
Certain types of employees are legally 'exempt' from overtime laws and therefore do not receive overtime pay. However, these exemptions are narrowly construed. California law provides specific tests to determine whether an employee is legally considered exempt.  Employers often misclassify employees as exempt, when in fact the employees do not meet the legal test for any exemption and therefore should be paid overtime wages.  If you have any questions about exempt status and unpaid overtime wages, please contact our wage and hour attorneys. Misclassification of employees can be very costly to employers.

Here are common ways employers may misclassify employees:

Independent Contractors: Simply calling an employee an independent contractor in an employment agreement or job description does not excuse an employer from paying overtime.  Although workers who are truly “independent contractors” are exempt from overtime laws, it is difficult to distinguish between “employees” and “independent contractors.”  In fact, employers often incorrectly label employees as independent contractors and thereby deprive them from the overtime compensation to which they are entitled.  For more information, please see our “Employee” Status v. “Independent Contractor” Status.

Specific Industries and Occupations: California also has a separate and complicated set of overtime wage rules regarding employees in specific industries. For example, regulations may apply to most “commercial drivers” but not “inter-state commercial drivers.”  Also, some highly trained medical professionals are exempt from overtime pay, others are not.  Similarly, computer programmers may be subject to different rules than computer network analysts. Our experienced attorneys can help you understand the particular rules that apply to your industry and occupation. Many people mistakenly believe only low paid laborers or service workers have claims for unpaid wages, overtime or commissions, however, that is simply not the case. Here are some examples of workers who may have large claims for unpaid overtime:

• truck drivers who do not cross State lines, limo drivers or other drivers who are not being paid for hours worked or for overtime hours worked;
• computer programmers, software designers, network analysts, computer engineers, IT specialists or other types of computer or software workers who work more than eight hours per day or forty hours per week, and are not paid overtime;
• nurses (who are not certified midwifes or practitioners) paid hourly or salary who work for over 8 hours per day or 40 hours per week and are not paid overtime;
• ambulance drivers or emergency medical technicians who work more than 8 hours per day or 40 hours per week and are not paid overtime;
• janitors, housekeepers, hotel clerks, cashiers and others who are paid by the hour but who aren’t receiving overtime wages;
• commission salespersons such as a mortgage brokers, stockbrokers, bank or home loan employees, or insurance salespersons who have been wrongly classified as exempt when in fact they are entitled to overtime; and 'managers' or 'assistant managers' in restaurants, clothing stores, or other retail establishments who spend less than half the time managing, who may or may not have the authority to hire or fire and who have been misclassified as 'exempt' when in fact they are entitled to overtime pay.

On-Call Wages
Employers sometimes fail to pay overtime wages to those workers whom they require to be “on call.” While some employers may pay hourly or flat rate on-call premiums to workers who agree to be available outside regular work time, many do not and disputes can arise. These disputes usually come down to the definition of control and use of time while on-call. For example:

• You are a customer services representative on-call to answer questions only, but are otherwise free to control your time. Your employer may only need to pay for the time spent handling an actual call.
• You are a crisis counselor required to be available on-demand constraining your control over your free time, you may be entitled to compensation for all of your on-call time. You may be entitled to on-call wages if you are required to be on site an employer’s facility.

On-call wage issues are usually complex.  The lawyers at the Kletter Law Firm have the experience you need to ensure a fair wage.  You may be an employee paid a split-rate wage that is not compliant with minimum amounts required under the law, or you may be an exempt employee paid an on-call premium that can change your exempt status and thus your past and future overtime pay. Contact us for help assessing your situation and how to proceed.

Prevailing Wage for Public Works Contracts
In California, certain private employers who are awarded public works contracts from government bodies are required to pay their employees a "prevailing wage." A prevailing wage is a minimum wage set by the Department of Industrial Relations that public works employees in similar industries and locales are paid for their work on such projects. Employers who fail to pay their employees this prevailing wage must not only compensate them for any underpayment but are also subject to significant penalties and fines.

Other Pay Violations
California employers often commit other violations of the California Labor Code such as:

• neglecting to reimburse employees for business expenses,
• failing to pay for all accrued but unused vacation wages at the time of separation from employment,
• not providing employees with their uniforms free of charge, and
• not providing accurate paystubs.

If you have questions about California Labor Code violations, unpaid overtime or other wages issues, contact us at Kletter Law Firm today by calling us at 415.434.3400 to schedule a no-fee initial in-person consultation.