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Red Flags for Overtime Violations

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Both state and federal laws require that employers provide overtime pay. California’s laws are particularly generous. If you work more than eight hours in a day, or more than 40 hours in a week, you should be paid 1.5 times your regular rate of pay. Any hours over 12 in a day also warrant double pay. Employees who work seven straight days can also receive overtime compensation.

Some employers can save considerable sums of money by not paying overtime, however, which deprives California workers of millions of dollars each year. The employer makes out like a bandit, while employees suffer the consequence.

If you suspect you deserve overtime but are not receiving it, read on. Our California wage and hour lawyer recommends that you pay attention to these red flags.

Your Schedule Changes Regularly

Some employers will try to avoid paying overtime by changing what qualifies as your weekly work schedule. These shifting, arbitrary changes often are driven by a desire to make sure an employee never works more than 40 hours in a workweek or seven straight days. Pay attention to how your employer is calculating your work week.

You Do Work “Off the Clock” at the Start or End of the Day

Many employers require that employees perform certain tasks either before their shift begins or after it supposedly ends. For example, a shift supervisor might be required to bring in tables and umbrellas, clean equipment, or check inventory once their shift has ended. Before beginning a shift, some employees might need to hang up signs and flags or set up tables and chairs.

California’s courts have thankfully come to realize that small microtasks can really add up over the course of a month or year. Under federal law, there is something called the “de minimis” doctrine, that allows employers to get out of paying for these small tasks before or after shifts. Amazingly, federal law has sometimes allowed employers to deny compensation for up to 15 minutes of labor each day.

Under California law, however, the de minimis doctrine is much more limited. The California Supreme Court recently that several minutes of off-the-clock work had to be compensated. However, if work is truly irregular and/or brief—such as reading an email at the end of your shift once a week—then you might not be compensated for it.

You Are Misclassified

Employers can avoid paying overtime if a worker is an independent contractor and not an employee. With the rise of remote work, misclassification seems to be increasing.

Check whether you are really an independent contractor under California law. The fact that the employer has identified you as an independent contractor is not the end of the story. Instead, the state looks at whether you satisfy something called the ABC test. Under this test, a worker is an employee unless they meet all of the following:

  • The worker performs their duties free from the direction and control of the employer, both according to the contract and in the actual performance of duties.
  • The worker performs duties outside the employer’s usual course of business.
  • The worker is engaged in an independently established business, trade, or occupation of the same nature.

For example, a plumber a business hires to come unclog a drain is an independent contractor. However, a freelance blogger who works for one company and whose work schedule is closely regulated might actually be an employee.

You are Told You Don’t Qualify for Overtime Because You are Salaried

This is one of the biggest misconceptions about overtime. The truth is that salaried employees qualify for overtime unless they are specifically exempted by California law from overtime provisions or they meet the test for exempt status.

Let’s look at the exempt status test. An employee meets the test if they satisfy the following:

  • Their job duties are primarily administrative, executive, or professional, requiring independent judgment and discretion.
  • Their salary is at least two times the state minimum wage.

An employee must meet both. As you can see, simply being salaried does not mean that an employee does not qualify for overtime. This misconception might be responsible for thousands of people not receiving overtime when they fully qualify under the law.

Speak with a California Employee Rights Lawyer Today

Wagner Zemming Christensen LLP has represented many workers, individually and collectively, who have had their rights to fair compensation violated. There are different avenues for getting compensated, such as filing a wage claim or bringing a lawsuit. Please contact us today to schedule your free consultation.

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