Common Wage Violations

De Minimis Time Cases?

Under California law, employers are required to compensate employees for all hours worked, including work that an employee does before and after the start of his or her shift, even if it for a few minutes.

Split Shift Cases

Many employers require employees to work two separate shifts in a work day. If the time between the two shifts is more than one hour or is not considered a bona fide meal break, the employer must compensate the employee, who works a split shift, an additional hour of pay. The reason is because the split shift prevents the employee from taking a second job.

What is The Labor Commissioner’s Opinion

Training Time Cases

Employees who are required to undergo training may be entitled to compensation for the training time. However, if the trainee has no previous experience in the occupation, the employee can be paid 85% of the minimum wage rate for the first 160 hours. 

What is The Labor Commissioner’s Opinion

TIPPED EMPLOYEES

A gratuity or tip is money that is voluntarily left by a customer for an employee. California Labor Code section 351 provides that tips belong to employees and that employers and their agents, which include managers and supervisors, are not allowed to take any portion of the tip. California law further provides that employers can’t use tips an employee earns as a credit against the requirement to pay the employee his or her regular rate of pay, which must be at least minimum wage. 

What is The Labor Commissioner’s Opinion

OFF THE CLOCK CASES

Off the clock work occurs when an employee is not paid for all the time they are under the employer’s control. Examples of off the clock work is as follows:

• Employer asks the employee to work through their lunch break.
• Employee is not paid for a business trip.
• Employer requires employee to be at their assigned post at a certain time, however, the employee is not allowed to sign in until his or her shift starts.
• Employee is required to spend time before punching in and punching out on work activities, such as writing reports, briefing his replacement employee, putting on (donning) and taking off (doffing) mandated safety equipment, or waiting in line to use the time clock.

What is The Labor Commissioner’s Opinion

PIECE-RATE OR “PIECE WORK” CASES

Piece Rate is where the employee does not get paid by the hour but instead gets paid per unit completed. This is common in the garment industry, the construction industry, or in the auto repair industry. Labor Code section 226.2 provides that employees are entitled to minimum wage or overtime wages if paid a piece rate.  

It is important to remember that the piece rate does not cover the rest breaks and because rest breaks are paid, the compensation for rest breaks needs to paid separate from the piece rate compensation.  In addition, an individual is also entitled to compensation for the time that he or she is nonproductive or time under the employer’s control. 

MEAL BREAK CASES

Employers are required to provide their non-exempt employees with 30-minute off duty meal breaks. If the employee is not provided a lawful off-duty 30-minute meal break, he or she may be entitled to one hour of extra pay at the employee’s regular rate of pay for each day that a lawful meal break is not provided. In addition, if the employee is required to work during the meal break or is required to remain on duty during the meal break, the employee is also entitled to wages for the hours worked during the meal break. 

For additional information regarding California meal break issues click here

What is The Labor Commissioner’s Opinion

On-Call Cases

Being “on-call” means that although, the employee is not technically working, his or her movement is limited so that the employee is ready to work. Except under limited circumstances, all employees who are required to remain on-call, are entitled to compensation for the on-call hours. On-call can occur in several ways: 

• Employee is told to call in two hours before an unscheduled shift to see if the employer requires the employee to come to work.
• Employee is told to carry a cell phone or walkie talkie after hours or during meal breaks.

What is The Labor Commissioner’s Opinion

REPORTING TIME CASES

California law provides that employees who are required to report to work but does not work or does not work for at least half of his or her usual or scheduled shift are entitled to reporting time pay or their regular rate of pay of no less than two hours and no more than four hours, at the employee’s regular rate of pay. If the employee is provided work and is paid for at least half of the work time, the employer does not have to pay reporting time pay. 

Reporting time pay are wages. Reporting time occurs in the following occasions: 

• Employee comes to work for a normally scheduled shift but is sent home for reasons caused by an Act of God or other cause not within the employer’s control.
• The employee is asked to call before the start of his or her shift and the employee does so but does not work for at least half of his or her scheduled shift.

What is The Labor Commissioner’s Opinion

TRAVEL TIME CASES

If an employer asks its non-exempt employee to drive somewhere in the middle of his or her shift (not including commuting to and from work), that time must be compensated as hours worked. Travel time also includes travel to meetings and conferences and time when an employer requires an employee to meet at a designated place and then use the employer’s designated transportation to and from the work site. 

What is The Labor Commissioner’s Opinion

Rounding Cases

Many employers do not compensate their non-exempt employees for all hours actually worked. Instead, the employers use a rounding system to compensate their non-exempt employees.

California law permits employers to use a rounding system “to the nearest 5 minutes, or the nearest one-tenth or quarter of an hour,” so long as the rounding policy is fair and neutral, meaning that the rounding policy will at times benefit the employee (i.e. the employee is overpaid) and at other times benefit the employer (i.e. the employee is underpaid).

Misclassified as an Independent Contractor

Independent Contractors are not entitled to minimum wages, overtime compensation, or meal and rest breaks. Many employers misclassify their employees as independent contractors because it saves the employer a lot of money, such as worker’s compensation or payroll taxes. Many employers go as far as having the employee sign an independent contractor agreement. However, merely classifying an employee as an independent contractor does not mean than the person is not in fact an employee entitled to minimum wage or overtime.

For additional information regarding California Independent Contractor laws, click here

Prevailing Wages (Public Works Projects)

Pursuant to California Labor Code section 1771, when an employee performs labor on works of public improvement, or public works construction projects of one thousand dollars ($1,000) or more, the employee is entitled to a prevailing wage rate of pay for the classification of his or her labor, as determined by the Director of Industrial Relations. The failure to pay the prevailing wage, which is a minimum wage and overtime violation, subjects employers to an assessment of the unpaid wage difference pursuant to Labor Code section 1194.2.

What is The Labor Commissioner’s Opinion

Misclassified as an Exempt Employee

California law presumes that all employees are non-exempt and are entitled to overtime wages, meal and rest breaks and accurate itemized wage statements. Many employers provide their employees with glorified titles and tell them that they are exempt from overtime and exempt from meal and rest breaks. Many times, these employees are misclassified. Exemptions are narrowly construed against the employer and their application is limited to those employees plainly and unmistakably within their terms.

An employee’s job title, standing alone, is of little use in determining whether the employee is properly classified as exempt. The difference between an exempt employee and a non-exempt employee is not decided by the employer but rather it is decided by the law and the law looks at the employee’s job duties or what they do on a weekly basis and not based on job titles.

The most common type of overtime violation is when an employer misclassifies an employee. California Law allows certain types of jobs from being exempt from overtime compensation. The exemptions to the general overtime rules include the following:

• Executive, administrative and professional employees
• Employees in the computer software field
• Outside salespersons
• Inside Commissioned Salespeople
• Truck drivers
• Private school teachers
• Ambulance drivers and attendants
• Taxi cab drivers
• Employees of a public entity [exempt from overtime].
• Any individual who is the parent, spouse, child, or legally adopted child of the employer.
• Student nurses in a school accredited by the California Board of Registered Nursing or by the Board of Vocational Nurse and Psychiatric Technician Examiners
• Crew members employed on a commercial fishing boat
• Professional actors

CONTACT A LOS ANGELES WAGE AND HOUR ATTORNEY

The Law Offices of Morris Nazarian provides representation to employees seeking the payment of overtime wages, minimum wages, missed meal and rest breaks, vacation wages, deductions from wages, severance pay, misclassification, independent contractor cases and other unpaid wages or commissions. We also handle harassment and discrimination claims.

If you have been denied wages in the workplace, it is important that you speak to a knowledgeable Los Angeles employment attorney who can help you recover your wages. Los Angeles wage and hour lawyer Morris Nazarian has successfully represented employees who have been denied appropriate compensation. Please contact Los Angeles Employment lawyer Morris Nazarian by calling (310) 284-7333 to make an appointment for a free initial consultation or please fill out the Employment Law Case Evaluation Form and a Los Angeles Wage lawyer will call or email you as soon as possible.

If the wage violation is company-wide, you and your co-workers may be entitled to bring a class action lawsuit against the employer.