Unpaid Wages and Overtime

California’s wage laws are very protective, and they require that employers pay non-exempt employees for each hour worked – averaging is not allowed. For example, if an employee works thirty minutes per day preparing his or her work station before being allowed to clock-in, that work is off-the-clock work and must be compensated. Employers may not argue that the time can remain unpaid since the employee made a “average” of minimum wage, as California courts have explicitly rejected this argument.

Many employers argue that, because an employee is paid on a commission-only basis, that all work is somehow included in the commission pay. This is not true. Commission pay covers work which is included in generating a commission. But other work which does not generate a commission must be paid separately. Examples include:

• Car salespeople locking and unlocking cars at the beginning and end of shifts;
• Hair stylists who must help clean the salon between clients; and
• Salespeople who are required to attend product training and sales meetings.

In each of these scenarios, the employees are performing which does not generate a commission, and must be compensated separately for this work.

As a general rule, employees are entitled to 1.5 times their regular rate of pay for after the 8th hour per workday, and double pay for over the 12th hour of your workday. For example, if an employee is earning $10 per hour and works 14 hours in one day, she is entitled to $10/hr for the first 8 hours, $15/hr for the next 4 hours, and $20/hr for all hours thereafter. Employees are also entitled to double pay when working in excess of 8 hours on the seventh consecutive day of work.

California and Federal law, not your employer, determine whether you are entitled to overtime. Although many employers label their employees as “exempt,” and claim that the employees are not entitled to overtime, this is often a misclassification. Depending an a variety of factors, paralegals, certain intrastate truckers, computer professionals, and even some managers are mistakenly labeled as exempt from overtime, but are actually owed up to four years of overtime from their employers.

In addition to mislabeling employees as exempt from overtime, employers regularly mis-calculate overtime (often times on purpose). Don’t be fooled just because your pay stub has a heading entitled “overtime.” Carefully review your paystub and – if there is a bonus or commission component – have an attorney review it to make check whether the bonus or commission is included in the regular rate of pay for purposes of paying overtime. Don’t let your employer cheat you out of money that you have already earned.

If have been short-changed by your employer, or would like us to review your pay stubs to see whether you were paid properly, please contact us so that we can discuss your potential case.