Los Angeles Unpaid Overtime Lawyer

Unpaid Overtime Lawyer in Los Angeles

Best Los Angeles Unpaid Overtime Lawyer | Meal/Rest Break Lawyers at Azadian Law Group, PC, are experts in California’s wage and hour laws. Our skilled employment lawyers have handled numerous claims about failure to pay overtime compensation. There are various ways that employers can cheat employees out of all the overtime compensation they are owed. Some common examples where employees can be owed overtime compensation include:

• Requiring employees to work off the clock.
• Misclassifying employees as salaried employees instead of hourly employees entitled to overtime compensation.
• Requiring or encouraging employees to work during lunch or rest breaks.
• Prohibiting overtime hours while giving too much work to an employee to complete during non-overtime hours.
• Having employees complete work at home.
• Not compensating employees for travel that is required for work.
• Not compensating employees for the time it takes to put on gear or special equipment needed for work.
• Not compensating employees for time going through security procedures or bag checks before or after their shifts.
• Altering an employee’s time records to reduce or remove overtime hours.
• Not paying the correct overtime rate to employees.
• Not including all forms of compensation (such as commissions) in calculating an employee’s overtime rate.

Azadian Law Group has some of the best Los Angeles Overtime Lawyers and meal/Rest Break Attorneys. We offer free consultations to see if an employee may be entitled to additional compensation. When an employee is still employed, we also work with the employee to ensure that their concerns are documented appropriately. Our lawyers often include overtime and meal/rest break claims in wrongful termination cases. Our Los Angeles Overtime Lawyers and meal/Rest Break Attorneys also have incredible experience in class actions related to overtime and meal/rest break issues. We have recovered millions for employees who have been cheated out of overtime or not provided meal/rest breaks as required by California’s Labor Code.

What Is Overtime Pay?

Federal and state laws require overtime pay. These laws allow most employees to collect a 50% premium (or “time and a half”) if they work more than a certain amount each day or week, and in some situations, a 100% premium (or “double time”).

In some states, employers can use an employee’s tips as overtime pay. California law prohibits tips from being used as overtime pay, and an employer must pay out overtime pay separately.

Who Qualifies for Overtime Pay in California?

Employers covered by the federal Fair Labor Standards Act (FLSA) must pay overtime. Typically, a company would be covered by the FLSA if it generates $500,000 annually in sales. California overtime law also protects employees who work for small or family-run businesses.

However, some individuals may not be entitled to overtime pay. Some of the most common include:

• Independent contractors
• Administrative, executive, and professional workers
• Volunteer workers
• Employees of seasonal recreational or amusement businesses
• Small farm workers
• Criminal investigators

Am I an employee entitled to overtime?

Most employees in California are entitled to overtime pay, but there are some important exceptions. An “exempt” employee is an employee whose job does not qualify for overtime protection because of the kind of work the employee performs. Just because your employer says you are exempt does not make it true, and many employers misclassify non-exempt employees entitled to overtime pay as exempt employees. Also, just because you are paid a salary does not automatically make you an exempt employee.

The employer has the burden of proving that the employee was properly classified as exempt. See Martinez v. Joe’s Crab Shack Holdings, 231 Cal. App. 4th 362, 375 (2014) (“Exemptions are narrowly construed and, as affirmative defenses, must be proved by the employer. . . .  Moreover, because the elements of the exemption are stated in the conjunctive, all criteria must be established for the exemption to apply.”).

Overtime laws generally do not cover the following three categories of “exempt employees”: (1)Administrative Employees, (2) Executive Employees, and (3) Professional Employees. Each is discussed below.

Administrative Employees

Overtime laws do not generally cover employees who are considered “administrative employees.” To be considered an administrative employee, the following must all be satisfied:

1. Your duties must involve the performance of office or non-manual work directly related to management policies or general business operations of your employer or your employer’s customers;
2. You must customarily and regularly exercise discretion and independent judgment in performing your duties and not be micromanaged;
3. You must spend more than ½ of your time performing the above functions and
4. You must also meet the “salary basis” test, meaning you must receive a salary at least twice the minimum wage for full-time work.

Following are examples of employees who might qualify for the administrative exemption if they meet the criteria set forth above:

• Employees who regularly and directly assist a proprietor or exempt executive or administrator. Included in this category are executive and administrative assistants to whom executives or high-level administrators have delegated part of their discretionary powers. Generally, such assistants are found in large establishments where the office assistant has duties of such scope and requires so much attention that personal scrutiny, correspondence, and interviews must be delegated.
• Employees who perform only under general supervision work along specialized or technical lines requiring special training, experience, or knowledge. Such employees are often described as “staff employees,” or functional, rather than department heads. They include employees who act as advisory specialists to management or the employer’s customers. Typical examples are tax experts, insurance experts, sales research experts, wage rate analysts, foreign exchange consultants, and statisticians. Such experts may or may not be exempt, depending on the extent to which they exercise discretionary powers. Also included in this category would be persons in charge of a functional department, which may even be a one-person department, such as credit managers, purchasing agents, buyers, personnel directors, safety directors, and labor relations directors.
• Employees who perform special assignments under only general supervision. Often, such employees perform their work away from the employer’s place of business. Typical titles of such persons are buyers, field representatives, and location managers for motion picture companies. This category also includes employees whose special assignments are performed entirely or mostly on the employer’s premises, such as customers’ brokers in stock exchange firms and so-called “account executives” in advertising firms.

In contrast, if the employee has little or no discretion and must follow specific guidelines in performing their duties, they are unlikely to be an exempt employee (meaning they should be paid hourly with overtime and not just a salary); for example, in McKeen-Chaplin v. Provident Sav. Bank, No. 15-16758, 2017 U.S. App. LEXIS 11950 (9th Cir. July 5, 2017), the Ninth Circuit Court of Appeal held that mortgage underwriters at a specific bank should have been paid hourly with overtime. The Court reasoned that the underwriters’ primary duties did not relate to the management or general business of the employer. Instead, the Court found that the underwriters’ duties were “production rather than administrative work.” The production aspect of the job was that these underwriters sold mortgage loans. The Court also ruled that the employees did not have significant discretion in performing their duties because they were required to follow company guidelines to determine if the loan was acceptable from a risk standpoint.

Executive Employees

Overtime laws do not generally cover employees who are considered “executive employees.”  To be considered an administrative employee, the following must all be satisfied:

1. Your duties must involve the management of the business;
2. You must customarily and regularly direct the work of two or more other employees of the business;
3. You must have the authority to hire or fire other employees, or your suggestions and recommendations as to the hiring or firing must be given particular weight;
4. You must customarily and regularly exercise discretion and independent judgment;
5. You must spend more than ½ of your time performing the above functions and
6. You must also meet the “salary basis” test, meaning you must receive a salary at least twice the minimum wage for full-time work.

Remember, just because your title contains the word “manager” does not mean you are automatically an exempt employee.

Professional Employees

Overtime laws do not generally cover employees who are considered “professional employees.”  To be considered a professional employee, you must be licensed or certified in:

• Optometry;
• Law (in some circumstances including law school graduates but generally not paralegals);
• Architecture;
• Medicine (does not include nurses);
• Engineering;
• Dentistry (generally does not include dental hygienists);
• Teaching; or
• Accounting (includes only certified public accountants).

You must also spend at least half of your work time performing duties typical of your profession and meet the “salary basis” test, which means that you also must receive a salary that is at least twice the minimum wage for full-time work.

How Overtime Pay Is Calculated in Los Angeles, California?

Regardless of whether you are a salaried employee or not, you may be entitled to overtime pay if:

• You have worked more than 8 hours a day
• You have worked more than 40 hours in a workweek

You would be entitled to 1.5 your regular hourly rate in these situations.

If you have worked over 12 hours in a workday, your overtime rate would be 2x the regular hourly rate.

Calculating overtime pay for a salaried employee is a bit more complicated than for a non-salaried employee. To start, convert your hourly rate of pay by taking your weekly salary and dividing it by 40.

For Example:

1. Your salary is $4,000 per month.
2. Multiply that by 12 months ($4,000 x 12 months = $48,000)
3. Take the total and divide it by the 52 weeks of the year ($48,000/52 weeks = $923.08)
4. Now take your weekly pay and divide it by the 40-hour workweek for your regular hourly rate ($923.08/40 = $23.08)
5. In this instance, should you work more than 8 hours a day or 40 hours a week, your pay rate for those hours would be $34.61. If you work more than 12 hours in a day, your overtime pay would be $46.16

Pay for Meals and Breaks

Employees who work in California are entitled to a 30-minute meal break after working for five or more hours in a day (unless the workday will be completed in 6 hours or less). Employees need to note, however, that this meal break is unpaid, and therefore, those 30 minutes cannot be included when calculating your overtime pay. If the employee does not work more than 6 hours a day, the meal period can be waived by mutual agreement between the employer and the employee. See California Labor Code Section 512(a)

Recently, the California Court of Appeal ruled that if the employee does not work more than 6 hours in the day, the meal period can also be waived through an agreement between the employee’s union and the employer (the agreement between the union and the employer is referred to as a collective bargaining agreement). See Ehret v. Winco Foods, 2018 Cal. App. LEXIS 708 (Aug. 13, 2018).

Employees are also entitled to a second 30-minute break if they work 10 hours a day unless the workday is no longer than 12 hours. The second meal break can be waived by agreement between the employer and employee only if the first meal break was not waived.

A paid meal break is permitted if the nature of the work prevents the employee from taking a break. All parties agree in a written contract that it will be paid, and the contract allows the employee the right to revoke the agreement.

If you must be “on call” or carry a phone or pager during your meal or rest period, you may be owed an hour of pay for each meal or rest period. The California Supreme Court recently held that security guards were owed compensation for meal and rest periods where they were required to carry a pager and respond to potential issues, even if they did not receive such calls during each rest period. Augustus v. ABM Sec. Servs., Inc., 2 Cal. 5th 257, 273 (2016) (during meal and rest periods, employers must “relinquish any control over how employees spend their break time, and relieve their employees of all duties—including the obligation that an employee remain on call”).

Depending on the nature of the job, the employer and employee can agree that the employee will be paid for an “on duty” 30-minute meal/lunch period. An “on duty” meal period is allowed under California law only if the type of work the employee is hired for prevents him or her from being relieved of all job duties. Examples of such jobs include an employee on a shift alone or a security guard working alone. For such an on-duty lunch period, there must also be a written agreement between the employer and the employee stating that the employee agrees to an on-the-job paid meal period. This written agreement also must state that the employee can revoke the agreement at any time. See Wage Orders 1 –15, Section 11, Wage Order 16, Section 10.

All employees are entitled to a paid 10-minute rest period for every four hours worked. This rest break is in addition to the time the employee takes to use the restroom. To the extent it is practical, a rest break should be provided in the middle of the four hours worked. However, a rest period is not required for employees who work less than three and a half hours in a workday.

Certain potential exceptions exist for employees of 24-hour care facilities such as nursing homes. Another exception exists for swimmers, dancers, skaters, and other performers engaged in strenuous physical activities who must have additional interim rest periods during rehearsal or shooting.

What If A Lot Of Employees Are Denied Meal or Rest Breaks?

Depending on the number of employees impacted, a wage-and-hour class action may also be warranted for failure to provide compliant lunch and rest breaks.

Courts have routinely certified wage and hour class actions based on an unwritten policy of discouraging meal/rest periods to complete work for the employer. For example, in Jaimez v. Daiohs USA, Inc., 181 Cal. App. 4th 1286 (2010), the California Court of Appeal  instructed the trial court to certify the class based on the fact that “[t]he delivery schedules made it extremely difficult for [employees] to timely complete the deliveries and take all required rest breaks.” Similarly, in Dilts v. Penske Logistics, LLC, 267 F.R.D. 625 (S.D. Cal. 2010), the Court granted class certification of a meal-period class and agreed that “to the extent that these policies were informal and enforced through ‘ridicule’ or ‘reprimand,’ they should be provable through common representative testimony.”

In 2012, the California Supreme Court decided the landmark case of Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004 (2012) found that California employers do not have to police meal and rest periods, but the employer must “authorize” the breaks. The Court noted that “an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.”

California Courts interpreting Brinker have correctly found that some employees who may have taken their meal/rest break will not defeat a meal or rest period class action against an employer. See Bradley v. Networkers Internat., LLC, 211 Cal. App. 4th 1129, 1151 (2012) (“[W]hen an employer has not authorized and not provided legally required meal and/or rest breaks, the employer has violated the law and the fact that an employee may have taken a break or was able to eat food during the workday does not show that individual issues will predominate in the litigation.”)

The Time Limit for Claiming Overtime Pay & Meal/Rest Period Premium Pay

Employees who believe that they are entitled to overtime or premium pay for not being provided compliant meal/rest periods generally have 3 years under California overtime laws to collect overtime pay for the work they performed. This may be extended to 4 years under California’s Unfair Competition Law (UCL).

HOW REMOTE WORK POLICIES IMPACT LOS ANGELES UNPAID OVERTIME CASES

During the worst days of the COVID-19 pandemic, many employers were forced to adopt policies allowing employees to work remotely. However, remote work policies were becoming increasingly common across various industries even before the pandemic. The pandemic simply hastened a trend that was already developing.

Having the option to work from home offers many benefits to employees. For example, surveyed workers indicate that remote work policies allow them to spend more time with their families, which can boost overall job satisfaction. Early research also confirms that remote work policies don’t harm productivity. They may result in greater productivity.

However, when employees are permitted to work from home, there is a chance that questions may arise regarding whether they’re being denied overtime pay. Examples of ways in which employers may take advantage of their workers who no longer report to an office include (but are not limited to) the following:

• Expecting employees to be on call, even if this means simply expecting them to regularly check and respond to emails throughout the day. An employee may be taken advantage of if they’re expected to be on call, but they are still only paid for their normal working hours.
• Asking employees to handle emergency tasks that “won’t take up too much of their time.” Employees deserve to be paid extra for this work if it involves overtime hours. This is particularly true if it becomes relatively common for an employer to make such requests. Even if individual emergency tasks don’t take much time to complete, if addressing such tasks becomes a frequent requirement for an employee, the amount of time they spend on them can add up.
• Expecting employees to be accessible via a messaging app or another such communication tool even when they are not supposed to be working.
• Not paying employees for time spent ensuring their remote workplaces are equipped to serve their needs. For example, employees may be required to install certain software on their computers and install certain devices in their home offices to facilitate their work. They may deserve to be paid for the time spent installing these tools.

Again, the general impact of remote work policies on employee satisfaction appears to be positive. However, with these positive developments comes the possibility that employers will unfairly deny employees pay for time spent on work tasks.

If you’re a remote worker and you have reason to believe your employer isn’t compensating you fairly for your time, review your case with a Los Angeles unpaid overtime attorney. Our experts realize that employees may struggle to understand how remote work policies affect their eligibility for overtime pay. We’re prepared to answer any questions about this subject and determine if you have grounds to take legal action against an employer who is improperly taking advantage of work-from-home policies.

Unpaid Overtime Lawyer in Los Angeles For A Free Consultation

Calculating overtime pay and the rules relating to meal and rest breaks can be complex, and requesting it from an employer can be intimidating. The Azadian Law Group, PC offers free case evaluations to anyone trying to determine their overtime pay and whether they are fairly compensated for their time at work.

To speak with one of our knowledgeable employment attorneys today, please call 626-449-4944 or 213-229-9031, or 949-662-5405

As we never charge our clients a penny out-of-pocket, you can rest assured that when we accept a case, we stand behind our clients 100% and will fight aggressively for their rights.