The easiest way for an employer to violate a worker’s labor rights is to make sure that employee never knows what rights they have. Knowledge of the laws designed to protect you is the best way to ensure your employer is treating you fairly and avoid being the target of wage and hour violation.
We all want to believe we work for an ethical employer who knows and respects the laws of the State of California, but the reality is that wage and hour violations are still tragically common. One study from the Economic Policy Institute showed that in 2015 California workers were underpaid nearly two billion dollars ($2,000,000,000) because of minimum wage violations alone.
Every day we work with clients who have had their right to a fair paycheck for good work violated due to the negligence or in some cases the abuse of an employer. While every case is different, here are some of the things we think every employee should know to protect their rights under California wage & hours laws.
1) How to Recognize Wage and Hour Violations
There are countless ways that we’ve seen employers try to get more work out of their employees without paying a fair wage. Perhaps the simplest and most egregious action is when an employer simply chooses not to pay an employee appropriately for the hours worked. This can take the shape of requiring extra work done outside normal work hours or requiring an employee to work over their meals or breaks.
An hourly employee who, for example, is asked to finish a task outside of normal hours, or even stick around for an extra half hour to cover an absence, must be paid appropriately for those hours, including overtime pay where eligible. Your boss can’t just expect you to hang out and help with some work as a favor or to prove you’re a “team player.” That’s not team building, that’s theft.
Aside from simply requiring work without paying for it, some employers have gone a step further and made illegal adjustments to an employee’s reported hours. For example, if you worked eight hours and fifteen minutes on a given day, your employer can’t round that down to eight hours or move time around to avoid paying legally owed overtime.
2) Know What Misclassification of Exempt Status
When an employee is hired under an exempt status, it means that the employee is exempt from many of the basic wage and hour requirements such as breaks and overtime pay. In general, exempt employees tend to be paid a weekly salary and/or sales commission rather than being paid specifically by the hour. Some employers, however, see this as an opportunity to try and get around many of those basic protections.
Since salaried employees don’t generally receive overtime or have specific rules around rest and meal breaks, some employers classify workers as exempt or salaried to assign more work and hours without paying a fair wage. There are rules, however, intended to prevent this kind of behavior.
An employer can’t just decide to make any job exempt. Exempt roles must adhere to specific California rules regarding job duties and job types, meaning that an employer can’t choose a job that is normally non-exempt (hourly) and change its status to avoid paying overtime and breaks. Additionally, there are laws in place even for exempt status workers designed to protect against employers abusing the status to overwork employees without paying them a reasonable wage.
Misclassification of employees is a common tactic used by employers seeking to subvert California labor laws. Sometimes that can take the form of an employer taking an exempt, salaried employee and shifting their responsibilities to work that is normally paid by the hour. For example, this can be a retail employee who is hired as a supervisor but is required to perform a majority of duties that is more in line with an hourly associate role.
3) Understand When You Are Owed Overtime Pay
Rules regarding overtime in California are about as straightforward as they come. If you are a nonexempt worker and you work more than 40 hours in a work week or more than 8 hours in a single day, you must be paid at one and half times your hourly rate.
As mentioned above, one of the most common ways that employers try to dodge paying overtime is by misclassifying their employees as exempt when they are working primarily in a role that should be hourly. But, that’s not the only way employers try to avoid paying overtime.
We’ve seen situations where employers ask workers to work overtime in exchange for future time off, or force employees to stay off the clock while they are putting on or taking off – known as “donning and doffing” — equipment. In the more extreme cases, some employers will have an administrator or supervisor fill out time cards with incorrect information.
As an employee, if you suspect that your employer isn’t paying you what you’re owed, you need to individually document your hours worked and compare that to your pay stub. If you’re an hourly employee, there’s no such thing as working for your employer “off the clock.” Even an hour here and there unpaid is a violation and that is money you are absolutely owed.
4) Important Things To Know About Overtime
As mentioned, any work performed by a nonexempt employee over 8 hours in a single day or 40 hours in a work week must be paid at one and a half times that employees normal rate. While the core of the law is simple, there are some important details to know about overtime.
First, as a nonexempt employee, you cannot waive your right to overtime in the State of California. This is intended to prevent employers from coercing their employees to make an exception and trade their rightful overtime pay into time off or work done as a “favor.” This means that even if you say to your employer that you’ll work overtime without overtime pay, the employer, by state law, still owes you that time and a half pay.
In addition, if you work overtime in a situation where the employer did not ask you to do so, they still owe you that one and a half times hourly rate for that overtime work. Again, this is intended to prevent employers from being able to set unwritten rules or expectations around work schedules. In competitive work environments, a culture of unpaid overtime can develop among employees trying to demonstrate initiative or loyalty. By California law, regardless of whether anyone requested the overtime work, it must be paid.
However, this also isn’t a loophole for employees to inflate their paycheck without the employer’s permission or knowledge. While your boss owes you overtime pay for any work you do, if you conducted that overtime without their permission they can take disciplinary action against you.
What To Do If You Suspect a Wage & Hour Violation
It can be a tough decision to pursue a wage & hour claim against a current or former employer, but like we mentioned at the start, employers who act illegally rely on their workers either not knowing or not protecting their rights. And, we have seen from studies such as the one mentioned earlier in the article, that this is a multi-billion-dollar problem in California alone.
Our law offices exist to protect the civil and labor rights of our clients. Even if you only suspect that you might have been the target of wage theft or a California labor law violation, we want to talk to you. We invite you to contact our office to discuss your legal options.