Recognizing Wage and Hour Violations
Your Employer’s Duty:
Under California law, employers must pay all non-exempt employees overtime wages as follows:
- one and one-half (1½) times the employee’s regular rate of pay for all overtime hours worked over 40 hours per week.
- one and one-half (1½) times the employee’s regular rate of pay for all overtime hours worked over 8 hours per day up to and including 12 hours in any workday, and for the first eight hours on the seventh consecutive day of work.
- double (2.0) the employee’s regular rate of pay for all overtime hours worked in excess of 12 hours in any workday, and for all hours worked in excess of 8 hours on the seventh consecutive day of work in any workweek.
Common Overtime Pay Violations:
Employers violate their obligations to pay overtime in several ways. Common examples include:
Off the Clock Work.
The term “off the clock work” refers to time that your employer asks or requires you to work that is not recorded for purposes of calculating your wages. For example, one employer might tell you to punch out and finish a project before leaving. Another may expect you to work from home. Still others may require you to punch out for a meal break but to keep working during the meal break. Any “off the clock work” is unlawful.
Time shaving occurs when a supervisor or manager deletes time from your time-keeping records. It can be a few minutes here and a few minutes there, but it adds up over the course of a pay period. Time shaving is unlawful because an employer who alters your time records to eliminate time is not paying you for all the time that you worked.
Improper Rounding of Employee’s Time.
Some employers who use time clocks “round” your actual punch in and out time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. California and federal law allows employers to round time in this way under certain circumstances. But the law requires the rounding formula to be “facially neutral,” meaning that time is rounded up and down—both for and against the employer. The law also requires that the rounding does not result, over the long term, in a failure to compensate the employees properly for all the time they have actually worked. If your employer is rounding your time and you suspect that you’re not getting paid for all of your time on the clock, contact us for a free, confidential consultation. (213) 863-4276.
Misclassifying Workers as Independent Contractors.
Employers also violate the overtime regulations by misclassifying a non-exempt hourly worker as an independent contractor and paying them a flat hourly rate for all hours worked. For example, if a construction company hires a worker, misclassifies him as an independent contractor and pays him $10.00 per hour for 50 hours of work in a one-week period, the employer is failing to pay the worker for 10 hours of overtime each week.
If you suspect that your employer is not paying you properly, contact an unpaid wages lawyer online or at (213) 863-4276 for a free, confidential consultation.
Meal and Rest Break Violations
Your Employer’s Duty:
If you work a typical 8-hour day, you generally have one 10-minute, duty-free break during the first work period before your meal, and a second 10-minute, duty-free break during you second work period.
Rest breaks are paid and should be entirely work free. You are entitled to a ten-minute rest period for every 4-hours of work, or major fraction of a work period (anything two hours or greater). Employers should allow you to take a rest break “insofar as practicable” in the middle of a work period. It should be noted, however, that rest breaks are not required for employees who work less than three and a half hours on any given day.
Meal breaks are unpaid and should be entirely work free. Employers generally must provide you with a duty-free 30-minute meal break if you work more than 5 hours in a day. A second 30-minute lunch must be provided if you work more than 10 hours in a day. The first meal period must be taken no later than the end of your 5th hour of work. If a second meal break is required, then it must be taken no later than the end of your 10th hour of work.
Employers violate the meal and rest break laws in many ways. Common examples include:
- Failing to provide any meal or rest break.
- Failing to provide a full 30-minute off-duty meal break.
- Failing to provide full 10-minute off-duty rest breaks.
- Requiring an employee to work through lunch or a rest break.
- Requiring you to be on-duty, or on-call or standby during a meal or rest break.
- Failing to provide a meal break until after the fifth hour of work.
Compensation for Missed Meal and Rest Breaks:
For each workday that an employer fails to provide you with a duty-free, 30-minute meal period, or interrupts your meal period, your employer owes you one additional hour of pay at your regular rate. If your employer doesn’t give you your complete 10-minute, duty-free rest breaks, or interrupts them, your employer also owes you one hour of pay. If your employer fails to provide you with both a meal break and a rest break, your employer owes you two hours of pay at your regular rate. Your employer should pay you for these additional hours—for missed or interrupted meal and rest breaks—in the next paycheck.
Other Wage and Hour Violations
Employers can also violate the wage and hour laws in the following ways:
- Misclassifying employees as exempt from overtime pay.
- Making errors in calculating your wages.
- Failing to pay for or denial of meal and rest breaks.
- Failing to reimburse employees for work related expenses.
- Failing to provide accurate wage statements.
- Failing to timely pay proper amounts or all wages when due.
- Failure to provide final wages at termination, whether by resignation, layoff or firing.
- Failing to pay or improper calculation of vacation pay and time off.
- Failing to pay sales commissions.
- Failing to include commissions or bonuses in calculation of overtime pay.