DO NOT BE A VICTIM OF WAGE THEFT BY YOUR EMPLOYER!
- Do you work overtime (OT), but are not being “paid” for it?
- Are you an “hourly” employee, even though your employer has given you the title of “manager” and pays you by salary just to get away from paying OT?
- Is your employer treating you as an “independant contractor”, just to get away from paying you OT?
WHO IS ENTITLED TO AN OVERTIME PAY UNDER CALIFORNIA LAW?
According to the California Department of Industrial Relations(1), California’s wage and overtime law is designed to protect workers. The state’s, “overtime pay” is considered additional wages and pay for working over 40 hours a week or over 8 hours in a day.
Generally, under California law, the state presumes that all employees are entitled to OT compensation, unless the employer meets one or more of the narrowly defined “exemptions“. Exemptions are narrowly construed against the employer, and their application is limited to those employees plainly and unmistakably within their terms. The major exemptions are: “Executive Exemption“, “Administrative Exemption“, “Professional Exemption“, the “Computer Professional Exemption”, “Outside Salespersons Exemption”, and “Family Member Exemption”.
If you do not meet all of the requirements, for at least one of these exemptions, you are entitled to OT pay.
An “exempt employee” is not entitled to OT pay, however a “non-exempt” employee is entitled to overtime. An employee’s eligibility for OT pay is dependent upon the nature of their job duties. The “label” or “title” the employer gives the employee, does not deem the employee exempt from OT pay. It is the actual duties performed by the employee that determine whether the employee is exempted from OT pay or not.
- Any nonexempt employee 18 years of age or older, or any minor employee 16 or 17 years of age who is not required by law to attend school and is not otherwise prohibited by law from engaging in the subject work, should not work more than eight hours a day or more than 40 hours a week unless he or she receives one and one-half times his or her regular rate of pay for any extra hours.
- Employee is entitled to one and one-half times the employee’s regular rate of pay for all hours worked in excess of eight (8) hours up to and including twelve (12) hours in any workday, and for the first eight (8) hours worked on the seventh consecutive day of work in a workweek; and
- Employee is entitled to double the employee’s regular rate of pay for all hours worked in excess of twelve (12) hours in any workday and for all hours worked in excess of eight (8) hours on the seventh consecutive day of work in a workweek.
- Eight hours of work is considered a day’s work, and employment in excess of eight hours in any workday or more than six days in any workweek is allowed provided the employee is compensated for the overtime.
Once you, as an employee, have established a basic presumption of overtime claim, you will win, unless your employer can prove that you are legally exempt. If your employer asserts that you are exempt, your employer has the burden of proving all the implants of such exemption.
In many cases, employers wrongfully deprive employees of earned OT pay. Even an “at-will” employee may legally sue an employer who has wrongfully denied them of their rightful OT pay. An employee also reserves the right to sue their employer for wrongful termination, if that employee is wrongfully terminated or harassed in retaliation for demanding OT pay that he or she is
HOW EMPLOYERS OFTEN TRY TO AVOID PAYING OVERTIME?
“Misclassification as an Exempt Employee”- Often, employers will attempt to find ways to avoid paying overtime. They might put an employee on salaried pay, or give them a specific title that does not match their job duties. However, it is important for employees to know that even under these circumstances, they are still able to receive overtime pay. The experienced employment attorneys, at the Rawa Law Group, can explain exactly what your rights are, and help you to fight for the compensation that you deserve.
“Misclassification as an independent contractor”- Sometimes, an employer may treat an employee as an “independent contractor”, although they are, in fact, legally an employee. This is the case whenever the employer has total control of the employee and his employment.
“Cash Pay” (or so called under the table pay)- In many instances, employers pay employees cash to avoid paying taxes. This also deprives the employee of their rightful OT pay. If your employer is depriving you of your OT pay, and you are considering legal action against them for this, or any other employment issue, do yourself a favor and contact our unpaid overtime and wage attorneys now.
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