Wage & Hour Claims

Certain classes of employees are entitled by law to be paid a minimum wage and overtime wages for working more than a 40 hour work week. Employers who violate the wage and hour laws can be sued by their employees for these violations. Employers are also liable for failure to pay wages earned and may incur penalties for delays in paying their employees. Wage claims can be brought before a Court or the California Division of Labor Standards Enforcement.

Under California law, all wages owed are due immediately upon termination of employment.  Similarly, failure to pay an employee his regular wages on time is a violation of California labor laws.

A minimum wage is the lowest hourly, daily or monthly wage that employers may legally pay to employees or workers. Under California law, the minimum wage is $7.50 per hour.  As of January 1, 2008, the minimum wage is $8.00 per hour. 

Under California law, you are entitled to 1 and ½ times your regular hourly wage rate for every hour after the 8th hour you work in the same day.  This is overtime pay.  You are also entitled to overtime pay for work beyond 40 hours in the same week.  However, you are entitled to two times your regular hourly wage rate for every hour after the 12th hour you work in the same day.  This is doubletime pay.  Overtime is due after 8 hours per day or 40 hours per week unless an alternative workweek of no more than 4 days of 10 hours was established.  Premium pay on 7th day not required for employee whose total weekly work hours do not exceed 30 and whose total hours in any one work day thereof do not exceed 6, in specific wage and hour orders.

Tips and gratuities belong to the employee in California and cannot be taken by the employer.   

Under California law, employees must get a 10-minute break for every four hours worked provided that the work day is at least five hours long.  Employees are also entitled to an uninterrupted 30 minute meal break after 5 hours if the workday is 6 hours or more. An employee may consent to waive her meal period if her workday is 6 hours or less. An on-duty meal period is counted as time worked and permitted only when the nature of the work prevents relief from all duties and there is a written agreement between the parties. An employee may revoke such an agreement at any time. If the employer does not give its employee such rest and meal breaks, it must pay the employee an hour’s pay at the employee’s regular hourly wage rate.  There are no federal labor or employment laws that require employers to set specific intervals or even make time for employees to take work breaks or eat meals.  However, under federal law, employers who do have a policy of giving one or more short rest breaks of about 20 minutes or less, must pay employees for their time while on such work breaks.

Under California law If you work more than 6 days in a row, you will be entitled to 1 and ½ times your regular hourly wage rate for every hour and one and one half times your regular hourly wage rate for every hour after the 8th hour you work in the same day.

Under California law, every employer shall at the time of each payment of wages, furnish each of his or her employees with an itemized statement in writing showing gross wages earned, total hours worked by the employee, net wages earned, and all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.  An employee who is denied this may be entitled to collect penalties against his employer.

Under California law, an employee is entitled to inspect his personnel file, payroll, and time and attendance records.

Ordinarily, an employee is not entitled to severance pay on the termination of his employment.  Similarly, employers are not ordinarily required to provide their employees with two weeks notice before firing them, though longer warning periods may be required for mass layoffs by larger employers.  However, the employee and employee may agree otherwise. 

An employee who is employed as an administrator (manager), executive, professional, or an artist may not receive the protections of most of the California wage laws.  However, employers often misclassify their employees as “exempt” from the wage laws in order to avoid providing employees with the benefits of such laws that they are otherwise entitled to.  Determining whether en employee is exempt from the labor laws may turn on whether the employee customarily and regularly exercised discretion and independent judgment in performing her duties. 
An independent contractor will not ordinarily be entitled to the same benefits as an employee.  Sometimes, employers misclassify their employees as independent contractors to avoid providing them with benefits they are entitled to under the labor laws.  To determine whether a worker an an employee or an independent contractor, several factors must be considered:  ·  acts that show whether the business has a right to direct and control. An employee is generally told by his employer (1) when, where, and how to work, (2) what tools or equipment to use, (3) what workers to hire or to assist with the work, (4) where to purchase supplies and services, (5) what work must be performed by a specified individual, and (6) what order or sequence to follow.  An employee may be trained to perform services in a particular manner.  Facts that show whether the business has a right to control the business aspects of the worker’s job include: (1) The extent to which the worker has unreimbursed expenses; (2) The extent of the worker’s investment; (3) The extent to which the worker makes services available to the relevant market; (4) How the business pays the worker; and (5) The extent to which the worker can realize a profit or loss;  Facts that show the type of relationship include: (1) Written contracts describing the relationship the parties intended to create; (2) Whether the worker is provided with employee-type benefits; (3) The permanency of the relationship; and (4) How integral the services are to the principal activity.