YOU ARE A PERSON, NOT JUST AN EMPLOYEE!
Overtime refers to time worked in excess of 8 hours in a day, in excess of 40 hours in a week, or in excess of 6 days in a work week. Generally, any non-exempt employee who works overtime hours is legally entitled to overtime pay, which in California is set at one and one-half (1.5) times the regular pay rate. California employers are obligated to pay overtime to any eligible worker, even if the overtime hours were not authorized by a supervisor.
Many employees who are paid salaries rather than hourly wages are exempt from overtime pay. This is especially true for those in managerial, administrative, and other similar executive positions. However, the fact that you are paid a salary does not necessarily prevent you from obtaining overtime pay. Also, many employers intentionally misclassify employees to avoid paying overtime even though the employees would otherwise be entitled to the benefits.
Are you not getting overtime pay? CALL US!
MEAL AND REST BREAKS
The law requires that employees periodically be allowed to take meal breaks. Specifically, the law requires: No employer shall employ any person for a work period of more than 5 hours without a meal period of not less than 30 minutes, except that when a work period of not more than 6 hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked.
An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. California Code of Regulations, Title 8, §11040. Additionally, an employee is allowed a paid 10 minute break time after each 3.5 hours of work. Such 10 minute worker break times must be paid by the employer.
The law protects an employee's right to take meal & rest breaks and eliminates the illegal practices of having the employee "waive" the meal break or having the employee take the break at the beginning or end of the shift. The law provides the only circumstances where the meal period can be waived by the employee -- when the total work day is only 6 hours, and subject to a written agreement where the job does not permit a meal break.
The law requires that "If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee 1 hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided." California Code of Regulations, Title 8, §11040. Likewise, if the rest breaks were not provided, the employee is entitled to compensation for the break periods.
Are you not allowed proper meal and rest breaks at work? CALL US!
EXEMPT vs. NON-EXEMPT
The Fair Labor Standards Act and the California Labor Laws classify employees into basically two categories: exempt and non-exempt. What this means is that some employers do not have to pay some classes of employees overtime pay if they meet certain standards or fall into certain professions, and those employees are “exempt.” That being said, one common trick employers use to go around the law is to place employees in job categories that are not entitled to overtime.
The FLSA and the California Labor Code are quite clear on the type of professions that are ineligible for overtime, but nevertheless some employers still resort to illegal means in an effort to save money.
MISCLASSIFICATION AS A MANAGER, EXECUTIVE, OR ADMINISTRATOR
Many executives, administrators and managers are generally salaried employees who have specific duties that involve overseeing other employees, making decisions on hiring and firing, and have control over clearly defined areas of the corporate structure. Due to their status as salaried employees that fit the government-mandated definition of roles and duties for their job descriptions, they are exempt from overtime rules if they work longer than the hours and days outlined by federal, state and local law.
What some employers do is take someone in a non-managerial position, such as an IT professional with no supervisory duties whatsoever, or a secretary that has no power over the hiring and firing of employees, and classify them as a manager. That enables the company to force these people to work long hours at a standard rate of pay instead of at a mandated overtime rate. In most cases this is illegal, and the company it can be held responsible in a court of law.
MISCLASSIFICATION AS AN INDEPENDENT CONTRACTOR
Another type of misclassification occurs when regular employees are classified as independent contractors. Misclassifications as independent contractors are common in the construction industry, service industries, and sales positions.
There are very specific guidelines for a company to call an employee a contractor, such as:
Basically, if the employer controls the means of production, establishes a timeline for production and limits the amount of freedom and discretion the person has, that person is not an independent contractor and is a regular employee and must be treated as such and paid overtime.
If a company falsely classifies a regular employee as an independent contractor, as is common in Southern California, it is a violation of the law. CALL US !
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Camarillo, CA 93012
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LOS ANGELES COUNTY
215 N. Marengo Avenue
Pasadena, CA 91101
Phone (626) 304-9972
Fax (626) 628-3011
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