Lowell Steiger's Los Angeles Law Blog

Mario Batali Tip Scamming Lawsuit: What Are The Rules?

    Wow, that's a lotta pasta! Yep, how many plates of his world famous delectable delights will Mario Batali have to sell to pay the $5.25 Million settlement? (read entire settlement agreement here - courtesy of Huffington Post).  Plenty.

What's It All About?

    Well, the lawsuit alleges that Batali, and his partner Joseph Bastianich, violated the U.S. Fair Labor Standards Act by (1) pocketing tips owed to the staff that were equal to as much as 5 percent of nightly wine sales, (2) not paying the federal minimum wage, and (3) failing to pay overtime. 

Did Mario Break The Rules?

    If the allegations are true, then, yes. Employers are not allowed to take their employee's tips for any reason.  Tips are the property of the employee.  There are certain states that allow employers to get a credit against wages owed for tips received but this is not what happened here.

    Not paying the Federal Minimum Wage?  What was he thinking?  An employer, famous or otherwise, has to pay his or her employees at least the minimum wage. It's the law!

    Failing to pay overtime?  This is illegal in all 50 states!

This Happened in New York

What If It Happened in California?

    If these things happened in California, there'd be hell to pay.  Here, employers are prohibited from crediting any portion of a tip received by an employee against the wages owed to that employee. (Labor Code Section 351).  Your boss could be on the hook for penalties, interest, attorney's fees and all sorts of grief (maybe eve punitive damages!). Don't let your boss cheat you out of what's yours!

    If you're entitled to overtime but didn't get paid overtime then, again, your boss would be in for some well-deserved grief. Take a look at Department of Industrial Relations on Overtime

    If you're in California and don't get paid minimum wage, you've been illegally taken advantage of and need to speak with a lawyer.  Period.  Here, take a look at the United States Department of Labor's Discussion on Minimum Wage and Overtime Laws

Questions About Your Overtime, Meal Breaks, Tips, Minimum Wages?

Call California Attorney Lowell Steiger Directly

(877) 487-8221 or (323) 852-1100

Your Consultation is Free

 

Are You Getting An Itemized Wage Statement?

    You have to follow rules at work, right?  Well your boss has to follow rules, too.  This post is all about the itemized statement that you are legally entitled to get with your payroll check (or cash payment) and the penalties that your boss may have to pay to you for failure to follow these rules.   

    California Law Code Section 226 requires your boss (and by “boss” I mean an individual employer or a huge company) to give you an itemized written statement every two months or at the time of each wage payment.  This applies whether you’re being paid by check OR cash!

Here's A List Of What MUST Be On Your Wage Statement

1. Gross wages earned
2. Total hours worked (unless you're a salaried employee who is exempt from state overtime rules)
3. Number of piece-rate units earned and the applicable piece rate(s) if you are paid on a piece-rate basis
4. All deductions
5. Net wages earned
6. Dates for which you are being paid ("beginning" and "ending" dates)
7. Your name and the last for digits of your Social Security number OR your employee ID number
8. Name and address of the legal entity that is your employer
9. All applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate

Payments in Cash Are Okay But...

    Yes, it is legal for your boss to pay you in cash.  However, your boss still must you with an itemized statement (as described above).

    Not only that, your boss must keep the records of those deductions, IN INK (or some other indelible form) for a minimum of three (3) years!  These records have to be dated (month, day, year) and be kept at your boss's location or some central location within the Great State of California and must be made available to you upon reasonable request (but beware! they can actually charge you the copying costs).

Residential Dwelling Exception

    If you're working for someone in their home performing things like child-care services or personal duties unrelated to your boss's business, trade, profession or occupation, then they do not have to give you an itemized wage statement.

Government Employees

    If you work for the government (state, city, county, city and county, district) your governmental boss can provide you with an itemized statement either in writing or electronically.

 

Union Employees

    Don't let anyone tell you that just because you're in a union you're not entitled to get an itemized wage statement.  Au contraire mon ami.  Union and nonunion employers alike must provide you with an itemized statement.  This rule is NOT waivable even under collective bargaining agreements.

Up To $4,000 In Penalties (plus Attorney's Fees)

If Your Boss Breaks the Rules

 
   If your boss knowingly and intentionally fails to follow these rules, then he or she or it may be liable to pay a penalty to you (minimum $50 per violation but it could go much, much higher -- up to $4,000).  They may also have to pay your costs and reasonable attorney's fees.

 

      In addition to what your boss might owe you, they may also be assessed an additional civil penalty of $250 per employee for the each violation in the first citation and up to $1,000 per employee for each violation in subsequent violations.  Labor Code Section 226.3

If you, or someone you know, have been a victim (or suspect you have been a victim) of

Wage & Hour Abuse

Please call or e-mail me immediately at

(323) 852-1100 or [email protected]

Employer Ripping You Off? There's an iPhone App For That!

Great news everyone! The Department of Labor is aggressively assisting employees in their quest for justice -- i.e. not getting ripped off by their employers who brazenly cheat them out of their earned wages and overtime.  See the press release below which, in sum, describes the new iPhone App created by the Department of Labor for YOU!

Click the App Store Button on your iPhone or iPad and search "Department of Labor"and the "DOL - Timesheet" will appear.  Download it and call or e-mail me if you've got questions, concerns or are finding that you're a victim of Wage & Hour Violations.

Department of Labor Press Release

WASHINGTON — The U.S. Department of Labor today announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers. Glossary, contact information and materials about wage laws are easily accessible through links to the Web pages of the department's Wage and Hour Division.

Additionally, through the app, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment.

This new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.

"I am pleased that my department is able to leverage increasingly popular and available technology to ensure that workers receive the wages to which they are entitled," said Secretary of Labor Hilda L. Solis. "This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay."

The free app is currently compatible with the iPhone and iPod Touch. The Labor Department will explore updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.

For workers without a smartphone, the Wage and Hour Division has a printable work hours calendar in English and Spanish to track rate of pay, work start and stop times, and arrival and departure times. The calendar also includes easy-to-understand information about workers' rights and how to file a wage violation complaint.

Both the app and the calendar can be downloaded from the Wage and Hour Division's home Web page at http://www.dol.gov/whd. For more information about federal wage laws or to order a calendar by mail, call the division's toll-free helpline at 866-4US-WAGE (487-9243).

Related Stories

Boss Ripping You Off? Call For a Free Consultation

 

Attorney General Brown Wins Back Pay for 200+ Construction Workers!

BAKERSFIELD - Attorney General Edmund G. Brown Jr. today announced that his office has secured back pay for more than 200 workers who were "routinely denied" fair wages and overtime pay by Charles Evleth Construction, Inc., a Bakersfield-based drywall company.

"To boost its profits and underbid competitors, Charles Evleth Construction routinely denied its hardworking employees a fair wage and overtime pay," Brown said. "Today's judgment secures back pay for more than 200 employees and prohibits this company from violating workers' rights."

In addition to providing back wages for more than 200 construction workers, today's settlement prohibits Charles Evleth Construction from:

- Denying fair wages and overtime pay for workers;
- Paying employees in cash to avoid state and federal taxes; and
- Permitting supervisors to take kickbacks from their employees' paychecks.

Today's settlement follows a January 2009 suit Brown filed in Kern County Superior Court against Charles Evleth Construction to recover unpaid wages for workers who were denied full paychecks and overtime pay.

Read entire lawsuit here

Read entire settlement agreement here

Brown's office initiated its investigation in late 2008 and found nearly 1,200 violations of California law. In addition to wage violations, the investigation found that the company had failed to pay unemployment insurance, make state disability fund payments and pay state and federal taxes.

These practices allowed the company to gain an unfair advantage over its competitors and underbid them for construction jobs.

In the complaint filed in January 2009, Evleth was sued for violations of:

- California Labor Code section 510 for denying overtime pay;
- California Labor Code section 226 for failing to provide itemized statements detailing rate of pay, hours worked, deductions and pay period;
- California Labor Code section 1197 for failing to pay minimum wage;
- California Industrial Welfare Commission 16 (8)(b)) for requiring workers to bring their own tools without paying at least twice the minimum wage;
- California Labor Code section 221 and 223 for allowing supervisors to take kickbacks in exchange for being allowed to work; and,
- California Labor Code section 221 and 223 for allowing employees to split paychecks in cash.

Worker's Story

Juan Manuel Avalos of Bakersfield worked for Charles Evleth Construction for five months in 2005. Avalos was hired with a verbal agreement to work five days a week for $750 per week in pay. However, when Avalos started, he was required to work six days a week and often worked 12-hour shifts without overtime pay. Avalos was paid in cash every week, but discovered two months into the job that a site supervisor had been cashing his paychecks and taking up to $500 every week from his pay, leaving Avalos what remained in cash.

Last month, Brown filed two other lawsuits against companies that failed to pay workers and subjected employees to potentially dangerous workplace conditions, including:

- A lawsuit filed March 10 against Juan Munoz, a farm labor contractor in Southern California, for failing to provide rest breaks, potable drinking water or shade to field workers.

- A lawsuit filed March 3 against Livermore-based Country Builders after the company falsified payroll records to hide underpayments, deliberately misclassified workers to reduce the company's workers' compensation premiums and violated state prevailing wage laws.

If you, or someone you know, have been a victim (or suspect you have been a victim) of

Wage & Hour Abuse

Please call or e-mail me immediately at

(323) 852-1100 or [email protected]

California Wage and Hour Violations - Does Your Boss Owe You Back Pay?

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http://twitter.com/steigerlaw

Answers to Questions About Your Wage & Hour Rights

Do you wonder if you have a claim against your employer for failure to pay you proper wages?  The Law Offices of Lowell Steiger and the Law Offices of Steven Waisbren would like to provide answers to some of the more common questions, and we are happy to discuss your particular situation at your convenience.

Question -

What is the general rule about payment of overtime wages?

Answer -

Under California law, a “nonexempt” employee 18 years of age or older shall not be employed more than eight hours in any workday, or more than 40 hours in any workweek unless he or she receives 1½ times his or her regular rate of pay for all hours worked over eight hours in any workday, over 40 hours in the workweek, or more than six days in any workweek.

An employee is entitled to double his or her regular rate of pay if he or she works in excess of 12 hours in any workday, and for all hours worked in excess of eight hours on the seventh consecutive day of work in a workweek.

Question -

What is an exempt employee?

Answer -

An exempt employee is one to which the overtime wage protections under the California Labor Code do not apply.  If an employee is truly exempt, they are not entitled to overtime wages, regardless of the number of hours he or she works.

Question -

How do I know if I am an exempt or nonexempt employee?

Answer -

There are a number of exemptions which exist, and may apply to your particular situation.  For the most part, these would include the administrative exemption, executive exemption, and the professional exemption.  Generally, the existence of these exemptions depends upon numerous factors, including the amount of independent judgment and discretion given to the employee on significant matters, the extent of supervisory or managerial duties the employee performs, and, most importantly, whether the employee performs exempt duties more than 50% of the time.  Of course, there are a number of other considerations which must be analyzed.

A determination of your exemption classification should be made only after consultation with an attorney since there are many reasons that an employee may be nonexempt under the law .

Question -

What if my employer has classified me as an exempt employee?  Am I bound by that classification?

Answer -

Absolutely not!!  Many employers will misclassify employees either mistakenly, or in an effort to avoid paying the employee overtime wages to which he or she is entitled.  Don’t assume that your classification is correct.  You may be entitled to many years of back wages, interest, and other damages.

Question -

Can I be fired for making a claim for overtime wages?

Answer -

No.  California law specifically prohibits an employer from doing so.

Interesting Facts About Wage & Hour Claims

·     An employer is obligated to pay you overtime even if the overtime hours were not authorized. The employer can discipline you for working unauthorized overtime hours, but the employer must still pay overtime wages for those hours.

·     Discretionary bonuses or monies paid as gifts on holidays are generally not included for purposes of determining the employee’s regular rate of pay.  Therefore, such bonuses are not computed in the calculation of overtime wages.

·     Even if an employee is paid a salary, they are still entitled to overtime wages as long as they are not exempt (See discussion in Q & A section).

·     As long as overtime wages are paid, an employer may require an employee to work overtime hours.  The  employee may be disciplined for refusing to do so.

·          Any agreement signed by an employee to waive entitlement to overtime wages is not enforceable.  The employer is still obligated to pay overtime.

·          The burden of proving that an employee is “exempt” is on the employer.  The worker is always presumed to be entitled to overtime compensation.

The Law Offices of Lowell Steiger Has Expanded Its Practice 

to Represent You for Your Wage and Hour Claims

    The Law Offices of Lowell Steiger, working in association with the Law Offices of Steven Waisbren, is happy to provide you with a free consultation, including a full analysis of your entitlement to overtime wages, minimum wages, and other back pay and damages.  Give us a call, and we will set up an appointment for you to meet with one of our qualified and experienced attorneys.

Follow me on Twitter

http://twitter.com/steigerlaw

If you, or someone you know, have been a victim (or suspect you have been a victim) of Wage & Hour Abuse, please call me immediately at (323) 852-1100 or send an e-mail to me at [email protected]

Denial of Proper Overtime Pay: A Real Problem With a Real Solution

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Denial of Proper Pay for Employees is Rampant

THE PROBLEM - 

     With the economy on a persistent downturn, and the business community feeling the impact, employees are increasingly being denied proper compensation for the work they perform.  This either arises because employers mistakenly believe that their employees are not entitled to compensation guaranteed by the California Labor Code or mislead their employees with respect to such entitlement.

      Unfortunately, most employees are unaware that they were, or are, entitled to additional compensation under California law until either well into their employment, or until after their employment has ended.  California law provides employees with considerable remedies, and subjects employers to substantial liability for violating state law. Denial of proper compensation gives rise to possible legal action against the employer, and potential damages include back pay for overtime, minimum wages, meal and rest breaks, interest, penalties, and attorney’s fees.

THE MISCONCEPTION -

      Many workers are uninformed about their rights to compensation as an employee, thereby giving employers the opportunity to take advantage.  For example, while the concept of minimum wage is generally understood, most employees assume that if they are a manager or supervisor, they are “exempt” employees not entitled to overtime compensation.  Oftentimes, this is not true.  In fact, the employee’s job title is irrelevant.  A “manager” may still be entitled to overtime compensation, as well as other damages, against an employer, regardless of contrary information provided by the employer, and regardless of the specific job designation or title given to the employee.

THE SOLUTION -

      If you have worked overtime hours, or been paid less than the minimum wage required by state law, you should consult an attorney to determine your rights.  Even if you believe that you are not entitled to overtime compensation, or other  wages, an attorney can provide you with a detailed analysis, and advise you whether such a claim is viable.

Interesting Facts About Wage & Hour Claims -

·    An employee who prevails in a wage and hour claim can claim attorney’s fees as part of his or her damages.  However, the employer cannot.

·    A worker’s job title (i.e., “manager”) means nothing as to whether overtime compensation is due.  The true test is the actual duties performed by the worker.

·    A worker who is classified as an independent contractor may still be eligible for overtime compensation and other benefits.

·    A worker who receives a salary may still be entitled to payment of overtime compensation.

·    To prove an overtime claim, a worker does not need any supporting documentation; only his or her testimony showing a “reasonable estimate” of the number of hours worked.

·    The burden of proving that an employee is “exempt” is on the employer.  The worker is always presumed to be entitled to overtime compensation.

The Law Offices of Lowell Steiger Has Expanded its Practice To Include Wage & Hour Claims

      Due to the increased incidence of improper payment  of overtime and minimum wages, the Law Offices of Lowell Steiger and the Law Offices of Steven D. Waisbren are proud to announce their association to represent the rights of California workers to be paid proper compensation under the Labor Code.    We are happy to provide you with a free consultation, including a full analysis of your entitlement to overtime wages, minimum wages, and other back pay and damages. 

Follow me on Twitter

http://twitter.com/steigerlaw

If you, or someone you know, have been a victim (or suspect you have been a victim) of Wage & Hour Abuse, please call me immediately at (323) 852-1100 or send an e-mail to me at [email protected]

Time Off to Vote: A State by State Guide

Time Off to Vote

Must your employer give you time off to vote?  See the chart below for a state by state analysis!

State	Time Allowed to Vote	Paid or Unpaid	Applicable Statute
Alabama	The necessary time off shall not exceed one hour and if the hours of work of the employee commence at least two hours after the opening of the polls or end at least one hour prior to the closing of the polls, then the time off for voting as provided in this section shall not be available.	Unspecified	2006 Alabama Laws Act 2006-545 (H.B. 141)
Alaska	Sufficient time to vote, unless the employee has two consecutive hours in which to vote, either between the opening of the polls and the beginning of the employee's regular working shift, or between the end of the regular working shift and the closing of the polls.	Paid	Alaska Statutes § 15.15.100
Arizona	Three hours, unless polls are open three hours before or after shift.	Paid	Arizona Revised Statutes §16-402
Arkansas	Employer shall schedule sufficient time on election days so that employees may vote.	Unspecified	Arkansas Code § 7-1-102
California	Two hours at the beginning or end of the regular working shift.	Paid	California Election Code § 14000
Colorado	Two hours unless polls are open three hours before or after regular working shift.	Paid	Colorado Revised Statutes §1-7-102
Connecticut	None
Delaware	None
Georgia	Two hours unless polls are open two hours before or after regular working shift	Unspecified	Georgia Code §21-2-404
Florida	None
Hawaii	Two hours, unless polls are open two consecutive non-working hours.	Paid, with proof that vote is cast	Hawaii Revised Statutes §11-95
Idaho	None
Illinois	Two hours.	Unpaid	10 Illinois Compiled Statutes 5/17-15
Indiana	None
Iowa	Three hours, unless employee has 3 consecutive hours non-work time when polls are open.	Paid	Iowa Code Annotated § 49.109
Kansas	Up to two hours.	Paid	Kansas Statutes Annotated §25-418
Kentucky	Up to four hours.	Unpaid	Kentucky Revised Statutes § 118.035
Louisiana	None
Maine	None
Maryland	Employees who do not otherwise have two hours of continuous off-duty time when the polls are open may take up to two hours of leave to vote.	Paid with proof of voting	Maryland Code, Election Law, § 10-315
Massachusetts	Voters employed in mechanical, manufacturing or mercantile businesses allowed time off during the first two hours after the polls have opened only if an application for absence has been submitted.	Unspecified	Massachusetts General Laws Annotated 149 § 178
Michigan	None
Minnesota	Employees are allowed to take time off during the mornings of election days.	Paid	Minnesota Statutes Annotated  § 204C.04
Mississippi	None
Missouri	Employees may take up to three hours off to vote on Election Day during the times the polls are open if a request for time is made prior to Election Day and the polls are not open for three successive hours when the employee is not at work. The employer may specify any three hours when the polls are open during which employees may take time off to vote.	Paid	Vernon's Annotated Missouri Statutes 115.639
Montana	None
Nebraska	Employees are entitled to up to two hours to vote if the employee does not have two consecutive non-work hours to vote while the polls are open. The employee must request time off to vote prior to the Election Day, and the employer may specify when during the working day employees may take time off.	Paid	Nebraska Revised Statutes § 32-922
Nevada	Employees are allowed one to three hours on election days to vote if they do not have "sufficient" free time outside working hours, depending on the distance between work and the polling site. Employees must apply for time prior to Election Day. Employers may designate the specific time employees may take.	Paid	Nevada Revised Statues 293.463
New Hampshire	None
New Jersey	None
New Mexico	Employees may have up to two hours, unless they have two free hours before work or three free hours after work while the polls are open. The employer may designate the hours to be taken, but it may not include lunch or rest hours.	Paid	New Mexico Statutes § 1-12-42
New York	Employees are allowed to take "sufficient time" on Election Day as is necessary to allow them to vote, if four consecutive non-working hours are not available while the polls are open. Employers may designate whether the time is to be taken at the beginning or end of the shift.  Employees must notify employers of the need for time off not more than 10 days and not less than 2 days before the election. Employers must post a conspicuous notice of employee rights at least ten days before Election Day.	Paid up to two hours	McKinney's Consolidated Laws of New York § 3-110
North Carolina	None
North Dakota	The law encourages employers to provide time off to vote when an employee's regular work schedule conflicts with the times polls are open. NOTE: The recommended policy is voluntary.	Unspecified	N.D. Cent. Code § 16.1-01-02.1
Ohio	Employers are prohibited from firing an employee who takes a reasonable amount of time to vote.	Paid for salaried employees.	Ohio Rev. Code Ann. § 3599.06
Oklahoma	Every employer must allow its registered voters up to two hours off to vote on Election Day, during the time when the polls are open.	Paid	Okla. Stat. Ann. § 26-7-101
Oregon	None
Pennsylvania	None
Rhode Island	None
South Carolina	None
South Dakota	Employees are entitled to be absent from work on Election Day between the time the polls open and when they close, if the person does not have a period of two consecutive hours during the time the polls are open in which he or she is not required to be at work.	Paid	S.D. Codified Laws Ann. § 12-3-5
Tennessee	An employee may be absent for a reasonable time, not to exceed three hours, without penalty to vote during the time the polls are open in the county where the employee resides. If the tour of duty of an employee begins three or more hours after the opening of the polls or ends three or more hours before the closing of the polls of the county where the employee is a resident, the employee may not take time off under this section. The employer may specify the hours during which the employee may be absent. Application for such absence shall be made to the employer before noon of the day before the election.	Paid	Tenn. Code Ann. § 2-1-106
Texas	Unless the polls are open for voting for two consecutive hours outside of the employee’s working hours, employers must give employees leave to vote without penalty.	Paid	Tex. Code Ann. Election  Code § 276.004
Utah	Employers must provide employees up to two hours off between the time the polls open and when they close, unless the employee has at least three non-working hours during the time the polls are open. The employer may specify the hours during which the employee may be absent.	Paid	Utah Code Ann. § 20A-3-103
Vermont	None
Virginia	None
Washington	Employers are required to arrange employee work time on the day of an election so that each employee has a reasonable amount of time available for voting if the employee would not otherwise have two hours free (not including meal or rest breaks) to vote while the polls are open.	Paid	RCWA 49.28.120
West Virginia	Maximum of three hours time off to vote must be granted upon written demand made at least three days prior to Election Day.	Paid	W.Va. Code § 3-1-42
Wisconsin	An employee is permitted time off to vote for a period not to exceed three successive hours while the polls are open. The employee must notify the employer before Election Day of the intended absence. The employer may designate the time of day for the absence.	Unpaid	Wis. Stat. § 6.76(1)
Wyoming	At the employee's convenience, the employee may take one hour between the opening and closing of polls to vote.	Paid	Wyo. Stat. § 22-2-111
Washington, D.C.	None

If you, or someone you know, has been injured, please call me immediately at (323) 852-1100 or send an e-mail to me at [email protected]

"Treated With the Respect That You Deserve"

California Wage and Hour Violations - Does Your Boss Owe You Back Pay?

Answers to Questions About Your Wage & Hour Rights

Do you wonder if you have a claim against your employer for failure to pay you proper wages?  The Law Offices of Lowell Steiger and the Law Offices of Steven Waisbren would like to provide answers to some of the more common questions, and we are happy to discuss your particular situation at your convenience.

Question -

What is the general rule about payment of overtime wages?

Answer -

Under California law, a “nonexempt” employee 18 years of age or older shall not be employed more than eight hours in any workday, or more than 40 hours in any workweek unless he or she receives 1½ times his or her regular rate of pay for all hours worked over eight hours in any workday, over 40 hours in the workweek, or more than six days in any workweek.

An employee is entitled to double his or her regular rate of pay if he or she works in excess of 12 hours in any workday, and for all hours worked in excess of eight hours on the seventh consecutive day of work in a workweek.

Question -

What is an exempt employee?

Answer -

An exempt employee is one to which the overtime wage protections under the California Labor Code do not apply.  If an employee is truly exempt, they are not entitled to overtime wages, regardless of the number of hours he or she works.

Question -

How do I know if I am an exempt or nonexempt employee?

Answer -

There are a number of exemptions which exist, and may apply to your particular situation.  For the most part, these would include the administrative exemption, executive exemption, and the professional exemption.  Generally, the existence of these exemptions depends upon numerous factors, including the amount of independent judgment and discretion given to the employee on significant matters, the extent of supervisory or managerial duties the employee performs, and, most importantly, whether the employee performs exempt duties more than 50% of the time.  Of course, there are a number of other considerations which must be analyzed.

A determination of your exemption classification should be made only after consultation with an attorney since there are many reasons that an employee may be nonexempt under the law .

Question -

What if my employer has classified me as an exempt employee?  Am I bound by that classification?

Answer -

Absolutely not!!  Many employers will misclassify employees either mistakenly, or in an effort to avoid paying the employee overtime wages to which he or she is entitled.  Don’t assume that your classification is correct.  You may be entitled to many years of back wages, interest, and other damages.

Question -

Can I be fired for making a claim for overtime wages?

Answer -

No.  California law specifically prohibits an employer from doing so.

Interesting Facts About Wage & Hour Claims

·     An employer is obligated to pay you overtime even if the overtime hours were not authorized. The employer can discipline you for working unauthorized overtime hours, but the employer must still pay overtime wages for those hours.

·     Discretionary bonuses or monies paid as gifts on holidays are generally not included for purposes of determining the employee’s regular rate of pay.  Therefore, such bonuses are not computed in the calculation of overtime wages.

·     Even if an employee is paid a salary, they are still entitled to overtime wages as long as they are not exempt (See discussion in Q & A section).

·     As long as overtime wages are paid, an employer may require an employee to work overtime hours.  The  employee may be disciplined for refusing to do so.

·          Any agreement signed by an employee to waive entitlement to overtime wages is not enforceable.  The employer is still obligated to pay overtime.

·          The burden of proving that an employee is “exempt” is on the employer.  The worker is always presumed to be entitled to overtime compensation.

Prior Wage & Hour Posts of Interest

The Law Offices of Lowell Steiger Has Expanded Its Practice 

to Represent You for Your Wage and Hour Claims

         The Law Offices of Lowell Steiger, working in association with the Law Offices of Steven Waisbren, is happy to provide you with a free consultation, including a full analysis of your entitlement to overtime wages, minimum wages, and other back pay and damages.  Give us a call, and we will set up an appointment for you to meet with one of our qualified and experienced attorneys.

***************************************************************************************************************************

If you, or someone you know, have been a victim (or suspect you have been a victim) of Wage & Hour Abuse, please call me immediately at (323) 852-1100 or send me an e-mail at [email protected]

***************************************************************************************************************************

Attorney General Brown Cracks Down on Worker Abuses at Long Beach and Los Angeles Ports

California Attorney General Brown is clearly a friend of the wage & hour worker.  When people fear for their jobs, especially in our ever-declining economy, shark like employers step up their unreasonable demands and cheat employees out of their fair compensation by misclassifying them as "independent contractors" or "exempt employees."  These are terms that must meet certain legal criteria in order to be binding as to the worker.  Just because your boss says you're an "independent contractor" or are "exempt from overtime" doesn't make it so.  Read the press release below and e-mail me at [email protected] if you have any questions OR feel that you need a free consultation to clarify your rights.

LOS ANGELES—On September 5, 2008 California Attorney General Edmund G. Brown Jr. announced a crackdown on trucking companies operating at the Ports of Long Beach and Los Angeles that abuse their workers by denying them protections under state workers’ compensation, disability and minimum wage laws. These companies engage in cost-cutting schemes that take advantage of their workers and avoid California taxes. They unlawfully classify their workers as “independent contractors,” circumventing state employment taxes and labor laws that guarantee workers compensation and disability benefit and the right to a minimum wage.

“We are cracking down on these two companies and investigating several others that are taking advantage of their workers and cheating the state out of payroll taxes,” Attorney General Brown said. “These are low-paid truck drivers working long hours under onerous conditions who are not getting the benefits they deserve.”  (Story continues below)

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if you, or someone you know, have been a victim (or suspect you have been a victim) of Wage & Hour Abuse, please call me immediately at (323) 852-1100 or send me an e-mail at [email protected]

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Beginning in February 2008, the Attorney General’s office authorized a task force to investigate trucking companies at Long Beach and Los Angeles Ports. The investigation uncovered numerous state labor law violations committed by several trucking companies operating at the ports. Two of the lawsuits were filed in Los Angeles Superior Court today and several more will be filed in the coming weeks.

The lawsuits allege that the trucking companies named in the suits have an unfair advantage over their competitors in violation of California Business and Professions Code 17200 by depriving employees of benefits and protections entitled to them under California law. These companies are also cheating the State of California out of thousands of dollars in state payroll taxes.

Jose Maria Lira, a fleet operator responsible for transporting cargo from the Ports of Los Angeles and Long Beach, controlled all aspects of his drivers’ work, yet classified his employees as independent contractors and made them sign documents stating that they were independent. Lira leased his trucks to drivers, requiring them to sign a lease agreement stating that the driver would pay Lira 50% of his gross earnings each month in return for use of the truck, plus an additional 10% for management fees.

In fact, Lira required them to claim independent contractor status contrary to their true status as employees. The drivers worked exclusively for Lira, working 60 hours or more per week, delivering cargo in Lira company trucks. Under these conditions, the drivers should have employee status with its legal protections and benefits under the law.

The second lawsuit filed today is against the Pac Anchor Transportation Inc. (“Pac Anchor”) and Alfredo Barajas. Brown asserted that Pac Anchor and Barajas engaged in a shell game in which Alfredo Barajas supplied Pac Anchor with 38 trucks and drivers. Pac Anchor directly paid Barajas’ truck drivers, providing them with 1099 tax forms at the end of the year. Barajas and Pac Anchor misclassified the drivers as independent contractors in order to keep operating costs down and to avoid paying the mandated taxes and benefits.


The investigation found that the drivers should be classified as employees because they do not own the trucks they drive, do not have a business independent of Pac Anchor or Barajas, have no real opportunity for “profit” other than compensation on a piecework basis delivering loads, and can be terminated at will.

Related Articles and Links

BNA Daily Labor Report: Port Drivers Not Contractors, Say Lawsuits  (Teamsters for a Democratic Union)

Pac Anchor Transportation Website

People of the State of California v. Pac Anchor Transportation, Alfredo Barajas (Read the Complaint)

People of the State of California v. Jose Maria Lira (Read the Complaint)

Attorney General Brown Cracks Down on Worker Abuses at Long Beach and Los Angeles Ports (Los Angeles County Federation of Labor, AFL-CIO)

California Alleges Trucking Firms Improperly Avoid Workers’ Compensation Coverage (Workforce Management)

if you, or someone you know, have been a victim (or suspect you have been a victim) of Wage & Hour Abuse, please call me immediately at (323) 852-1100 or send me an e-mail at [email protected]

Boss Can't Make You Lie About Your Hours!

Is your boss a Leona Helmsley type?  Hopefully not BUT, as hard as it may be to believe, some employers take advantage of, and abuse, their employees in a myriad of ways.  One way is by making them sign a release that states that they have been paid all of their owed wages and/or taken all of the breaks to which they are entitled before they will agree to pay them!!!  How angry does this make you?  Well, apparently it got Governor Arnold Schwarzenegger's attention and he has attempted to right this egregious wrong by signing AB 2075 (details below).  The bill was sponsored by the California Rural Legal Assistance Foundation whose mission is "Fighting For Justice and Changing Lives."  Although their focus is primarily to help low income families, this new bill will be of benefit to all California Wage Earners -- I applaud their successful efforts.  Please read the important information below and, of course, if you, or someone you know, have been a victim (or suspect you have been a victim) of Wage & Hour Abuse, please call me immediately at (323) 852-1100 or send me an e-mail at [email protected]

New California Law: Limit on Wage and Hour Releases

Governor Arnold Schwarzenegger recently signed into law AB 2075, which modifies California Labor Code Section 206.5. The new provision takes effect on January 1, 2009.Section 206.5 currently prohibits an employer from requiring the “execution of a release” of a claim or right on account of wages due, or to become due, or made as an advance on wages to be earned unless payment of those wages has been made. Consequently, an employer cannot condition payment of earned wages on an employee’s execution of a release, and an employee cannot waive wages owed by an employer, unless all wages have already been paid. A violation of Section 206.5 will invalidate the release agreement, be deemed a misdemeanor, and may also result in civil ramifications. The new Section 206.5(b) defines a “release.” For the purpose of the amended Section 206.5, “execution of a release” will now prohibit an employer from requiring an employee, as a condition of being paid, to execute a statement of hours that he or she worked during a pay period which the employer knows to be false.Employers should closely review their employee release agreements, time recording documents and processes in light of the soon-to-be-modified Section 206.5.

Sponsored by the California Rural Legal Assistance Foundation (photo: Executive Director Jose Padilla) whose justifiably employee-friendly rationale is written as follows:

According to the author's office, increasingly unscrupulous employers protect themselves from litigation over   underpayment of wages or meal & rest period violations by adopting false pay records and timekeeping systems.  In many instances, these employers have instituted a practice of requiring their employees to sign off on timesheets which do not reflect actual hours worked and which are created at the direction of the employer or his/her staff, and/or to sign declarations attached to their timesheets that they have received all their rest and meal periods when, in fact, they have not.  These statements are generally required to be signed before the timesheets are turned over to the employer and wages  are paid. Workers who question this practice are often retaliated against.

It took this great foundation to put the wheels in motion to strengthen the rights of California Wage Earners.   

If you, or someone you know, have been a victim (or suspect you have been a victim) of Wage & Hour Abuse, please call me immediately at (323) 852-1100 or send me an e-mail at [email protected]