What Are Wage And Hour Claims And How Do You Prove One?
Wage and hour claims are probably the most common type of claim California employees make against their employer. They generally involve unpaid wages or overtime, but can also include other violations of the labor laws, including failure to provide meal and rest breaks and failure to provide pay stubs and checks with all the required information. Although a single employee’s claim might be too small to justify a lawsuit, many employees band together in a “class action,” which can benefit all employees affected by an employer’s unlawful practices.
Unpaid Wages and Off the Clock Work
Unpaid wage claims are, unfortunately, very common in California. Sometimes employers simply fail to issue paychecks. More commonly, employees are expected to do “off the clock” work for which they are not paid. Off the clock work often occurs before or after regular business hours. For example, hourly employees are frequently expected to respond to emails, telephone calls, and text messages during their “off” hours. Responding to communications is “work” and employers are required to pay employees at their regular rates for the time they spend doing these tasks. Off the clock work also commonly occurs when employees are required to put on and care for protective gear and uniforms.
If your employer is requiring you to do work “off the clock,” or if you aren’t being paid for each and every hour you work, you are entitled to compensation for the unpaid wages you have earned in addition to penalties, interest and attorney’s fees.
Unpaid paid overtime
If you are a nonexempt hourly employee, you are entitled to overtime pay and double time pay if you work more than a set number of hours in a day or week.
Overtime: If you work more than 8 hours in a day or 40 hours in a week, you are entitled to overtime pay, which is 1.5 times your regular, hourly rate.
Double time: If you work more than 12 hours in a day, you are entitled to double time pay, or 2 times your regular, hourly rate. You are also entitled to double time for time worked over 8 hours on the seventh day of consecutive work days.
If you are a victim of unpaid overtime, you can recover the amount of overtime pay owed, plus an equal amount as a penalty (called “liquidated damages”), plus attorney fees and other penalties.
Missed Meal and Rest Breaks
If you work more than 5 hours in a day, you are entitled to a 30-minute meal break. If you work more than 10 hours in a day, you are entitled to a second 30-minute meal break. Your employer cannot discourage you from taking your meal break and you are free to take your meal break off work premises.
If you work more than 3.5 hours, you are entitled to a rest break. You are entitled to a rest break for every 4 hours you work. The break must be at least 10 minutes long and should be uninterrupted. If possible, the break must be near the middle of the 4-hour period. Rest breaks must be paid. You can’t be required to work during your rest break, but you can choose to work during the break, so long as your employer isn’t encouraging or requiring you to continue working.
For each workday that your employer fails to provide you a meal break, or if you miss a rest break, the employer owes you one additional hour of pay at your regular rate. This extra pay is called a meal and rest break “premium” and failure to include the premium pay in your next paycheck is illegal, entitling you to compensation, penalties and attorney fees.
Failing to Reimburse Employee Expenses
California law requires your employer to reimburse you for all necessary expenses you incur because of your job. The most common type of on-the-job expense employees have is the cost of using a personal vehicle. Other job-related expenses that require reimbursement include cell phones used for work, if you own the phone or pay for the service, and care and cleaning of uniforms.
Not Paying Wages on Time
Most employees must be paid every two-weeks, and paychecks must be issued within 7 days after the end of each pay period. If you are exempt from overtime and paid a salary, your employer may issue paychecks once per month, but again, all checks must be issued within 7 days of the end of the pay period.
Failing to Pay All Wages Due Upon Termination
If you are terminated or laid-off, you are entitled to your final paycheck immediately. Your employer cannot wait even until the following day to pay you everything you are entitled to. This includes all wages, accrued paid time off (PTO), including vacation and sick time.
If you quit your job without giving your employer 72 hours’ notice, your employer must give you your final paycheck within 72 hours after you quit. If you give more than than 72 hours’ notice, you are entitled to your final paycheck on your last day of work.
If your employer fails to provide your final paycheck on time, you may be entitled to “waiting time penalties,” which are equal your average daily wage for up to 30 days. If for example, your average daily wages are $100, and your employer is 15 days late issuing your final paycheck, you are entitled to $1,500 in waiting time penalties, in addition to the wages and PTO you are owed.
Issuing paychecks and Paystubs Without All the Proper Information
California law requires employers to give employees an itemized written statement with every paycheck. This statement, which can be in the form of a detachable pay stub or a separate document, must include the following information:
- Total wages earned during the pay period.
- Total hours worked during the pay period.
- All hourly rates in effect during the pay period and the number of hours the employee worked at each rate.
- Number of units and rate for any piece-work performed.
- All deductions from pay.
- The employee’s net pay.
- The dates included in the pay period.
- The employee’s name and the last four digits of the employee’s Social Security number.
- The employer’s full name and address.
If your paystubs do not include all of this information, or if the information is inaccurate, you may be entitled to penalties for each pay period you receive an inaccurate or incomplete paystub.
Misclassification as an Independent Contractor
Workers who find themselves misclassified as independent contractors or “1099ers” are at a serious disadvantage. When a worker is misclassified as an independent contractor, he or she is not protected by California’s minimum wage and overtime laws. Misclassified workers are not covered by workers’ compensation and may receive no compensation if injured on the job, have no right to family leave, no unemployment insurance and no protection against retaliation by the employer.
The Best Way to Prove A Wage and Hour Case: Keep Good Records!
If you believe your employer isn’t paying you properly, your best evidence in court will be good and accurate records. The importance of good record keeping cannot be stressed enough. If you are working more than 8 hours per day or 40 hours per week and are not being paid overtime, you need to document the time you are working and aren’t being paid for. Keeping a regular record of time worked will be extremely valuable in terms of proving your wage case against your employer.
The same goes for unreimbursed expenses, such as mileage. If your employer isn’t properly reimbursing you for miles you are required to drive for work, you should document the miles you drive and keep a record that can later be used as evidence to prove your claim.
Contact our Orange County Office Today
The Orange County based Law Offices of Corbett H. Williams represents employees in discrimination, harassment, retaliation, wrongful termination, wage & hour, whistleblower and other employment matters. If you think you have a claim, contact us today at 949-679-9909 or use the contact form below and we will respond promptly.