Archives for June 29, 2020

Overtime pay has been enshrined in federal law for the better part of a century, thanks to the Fair Labor Standards Act of 1938 (FLSA). Among a multitude of landmark protections for workers that were established at that time (and in the following decades), the FLSA provides employees who work more than 40 hours per week with pay at a rate of one-and-a-half times their normal rate for each additional hour worked.

As a federal statute, the FLSA provisions regarding overtime apply to all 50 states, which must adhere to it as a bare minimum. California goes beyond what federal law requires in some areas of overtime compensation, so please keep in mind that the protections we’ll describe below apply to California and may only apply to California. If you are concerned about learning overtime compensation laws for another state, check with its statutes.

More than Eight Hours in a Single Day; More than 40 in a Single Workweek; More Than Six Days in a Single Workweek

In California, non-exempt employees earn overtime compensation when they work more than eight hours in a single workday, or more than 40 in a single workweek, or more than six days in a single workweek. This provision is important because it’s a point where California law diverts from the minimum amount of federal protection under the FLSA, where only hours worked beyond 40 in a single workweek are eligible for overtime.

This disincentivizes employers from scheduling back-to-back shifts with only a short break between them or other potentially unintended consequences that may go against workers’ interests. California doesn’t outlaw this kind of “creative” scheduling, but instead ensures overtime compensation for employees who may be subjected to odd schedules throughout the workweek.

Time-And-A-Half Compensation & Double Time

The federal and state standard for overtime compensation is time-and-a-half, which means an employee will be paid at time and a half for each hour of qualified overtime work. A full hour does not need to be worked, but rather any number of minutes worked in excess of eight in a day or 40 in a workweek will be compensated at the same rate even if they don’t add up to a full hour.

Double time is a rate twice that of an employee’s normal pay rate. This rate is triggered when an employee works more than 12 hours in a single workday or more than eight hours on the seventh consecutive day of work.

Special Holiday Pay Is Not Required in California

It’s a common misconception that overtime or double-time rates are mandated by California law when an employee works on a holiday. This is not the case, and what may contribute to the misconception are the many employers who adopt policies to provide additional compensation on certain holidays. The likely reason for this is to encourage workers to come in for their shifts so that the business can operate on a day when it may receive an increase in sales.

In short, holiday pay is a perk some employers provide but it is not required by law.

Are You Being Fairly Compensated?

If your pay stubs aren’t reflecting accurate compensation for the hours you worked, or accurately account for the hours you worked, reach out to the employment law attorneys at Haeggquisr & Eck, LLP for assistance.

For more information about how we can assist you, reach out to Haeggquist & Eck, LLP online or by calling (619) 342-8000.

Employers have an implicit incentive to cut costs everywhere they see them. This widens profit margins for themselves and their investors and contributes to the overall viability of the business. In and of itself, this isn’t a bad thing because a viable business is one that can continue to employ its workers. Where it can become problematic, however, is when the cost-cutting endeavors directly and illegally impacts employees.

There are many ways an employer can violate wage laws, but employee misclassification has the potential to go unchecked the longest. This is because employee misclassification involves labeling a worker in a manner such that the employer’s obligations to pay overtime or certain taxes are limited.

Typically, workers will be misclassified as “exempt” or as “independent contractors.” Let’s take a look at each and how you may be able to identify if you’ve been misclassified.

Exempt vs. Non-Exempt Employees

When we’re talking about employment law, “exempt” almost always refers to an employee’s eligibility to earn overtime pay. The Fair Labor Standards Act makes this distinction and provides that overtime pay is calculated at a rate of one-and-a-half times the employee’s regular rate. In California, overtime pay is earned for each hour greater than 40 in a week or eight in a day.

There are nuances to overtime compensation laws in California that we’ll explore in another post, but for now that’s the basics of how overtime pay works. Clearly, employers have a financial incentive to label certain workers as “exempt” from overtime compensation when they should really be classified as non-exempt. Misclassification leaves the door open to demand more hours and more work from an employee without consequence because exempt workers aren’t entitled to overtime.

Here is how California law defines a non-exempt worker:

• They DO NOT earn a monthly salary of at least no less than twice the state’s minimum wage for full-time employment
• They DO NOT exercise discretion and independent judgement with regard to evaluating possible courses of action and deciding to take an action after consideration.
• Less than 50 percent of their time is spent performing non-exempt duties, such as manual labor.
• They ARE NOT an executive, administrator, salesperson, computer professional, artist, or another professional with specific skills and education.

Your job title is irrelevant if the reality of your job doesn’t match up to these standards. It’s not uncommon for employers to inflate their employees’ titles to make them sound as if they’re performing exempt functions when these employees should really be classified as non-exempt workers.

Independent Contractor Misclassification

Unlike exempt misclassification, inappropriately classifying workers as independent contractors not only helps the employer avoid paying overtime and payroll taxes, but also makes it harder – or even impossible – for the worker to bring wrongful termination, discrimination, sexual harassment, and other types of employment-based lawsuits.

An independent contractor is a perfectly legitimate classification. People who are independent contractors are often contracted by an employer to do a special job or perform work for a limited period of time, like an accountant.

That said, not everyone who is labeled as an independent contractor may actually be legally considered as such. California recently provided a so-called “ABC Test” to help people determine if they should truly be classified as independent contractions.

According to the ABC Test, an independent contractor is someone who:

1. Is free from control and direction of the company in performing work, both practically and in the contractual agreement between the parties;
2. Performs work that it outside the usual course of the company’s business; and
3. Is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the company.

If your relationship to an employer DOES NOT align with the above criteria, you may actually be misclassified and should be a full-fledged employee. Chances may also be likely that you should be a non-exempt employee and entitled to earn overtime pay.

Do You Need To Hold an Employer Accountable?

If you believe you are a misclassified employee and have been improperly denied overtime pay, certain benefits, or have otherwise had your employment rights violated, reach out to Haeggquist & Eck, LLP for help.

Contact us online or by calling (619) 342-8000 for a free evaluation!