Are You Being Paid What You’re Owed? Wage and Hour Class Action Claims in California

You go into work each day, do your job, and expect to be paid fairly for your efforts. Unfortunately, some employers try to cut costs at the expense of their employees. This can happen in a wide variety of ways. An employer may conveniently “forget” to pay you the overtime you deserve, force you to work without breaks, or encourage you to clock out and then continue working. Don’t let your employer get away with this! Both the federal government and the state of California provide specific protections for employees regarding wage-hour violations. In fact, California’s employee protection laws are some of the strictest in the entire country. If your employer is taking advantage of you, they are probably doing the same thing to your co-workers. You may have a wage and hour class action claim.

The Fair Labor Standards Act

You probably learned in school that there was a time in our history when employees were forced to work long shifts in factories for low, unregulated or monitored pay and no benefits. In those days, child labor was also common. The United States government worked to set down basic standards to protect workers, finally passing the Fair Labor Standards Act (FLSA) in 1938. The FLSA established a minimum wage, overtime pay at time-and-a-half, employment standards for children, and record-keeping requirements.

Employers who willfully violate the FLSA can face criminal and civil prosecution. They may be forced to pay hefty fines as well as back-pay unpaid earnings to their employees.

The FLSA is a good start in providing protection to workers, but many states have implemented laws that go even further. California is one of those states. Let’s look at some of the most common wage and hour complaints in California and what they mean.

Failure to Pay Minimum Wage

As of January 1, 2018, if you are an hourly, nonexempt employee in California, you should be making at least $11.00 an hour. In certain cities the minimum wage is even higher—the minimum wage in San Francisco is $14.00 per hour.

Generally speaking, an employer cannot reduce its workers’ wages to below the minimum (for example, by charging employees for uniforms, work supplies, shortages in cash registers, etc.), but California is one of the few states that additionally does not allow employers to reduce the minimum wage for employees who earn tips or to force “tip sharing” among employees.

Failure to Pay Overtime

In California, if you are a nonexempt employee, your employer must pay you a rate of one-and-a-half your hourly wage when you work over eight hours a day (but less than 12 hours in a day) or if you work for seven consecutive days.

For example, if Dan earns $12.00 an hour and works for 10 hours on Wednesday, he’ll earn time-and-a-half for the last two hours he worked. His pay for the day would look like this:

• $12/hr x 8 hours worked = $96
• $18/hr ($12 + $6) x 2 hours overtime worked = $36
• = $132 for the day

If Dan works more than 12 hours on Wednesday, or if he works over 8 hours on his seventh consecutive workday, his employer will have to pay him double time, or double his wage, for the excess hours he worked.

Some employers get really creative in trying to avoid paying overtime. They’ll force employees to clock out after 8 hours even if they continue to work, or will simply refuse to recognize that the employee worked overtime. They may claim that the employee worked extra hours without their knowledge or permission.

Certain, specialized types of employees known as “exempt employees” are not entitled to overtime pay. We’ll discuss exempt employees later in this article.

Failure to Provide Required Breaks

While the FLSA does not require employers to offer their employees regular breaks, California law does. In California, nonexempt employees are entitled to a 30-minute unpaid meal break for five consecutive hours of work. They are also allowed a separate, 10-minute paid rest break for every four hours worked.

If Amy works eight hours, she would be entitled to a 30-minute unpaid meal break within or immediately following her first five hours of work and two 10-minute paid, uninterrupted rest breaks following the first 3.5 hours and six hours of work. These breaks allow Amy to eat meals, communicate with her friends and family, use the restroom, and get off of her feet. If she or her employer fail to ensure that these breaks are taken, the employer is required to pay her an extra hour at her regular rate.

Some employers will claim that their employees have the option of taking breaks, all the while pressuring them to skip breaks or giving them so much work that they can’t take breaks without falling behind and facing punishment.

Falsely Claiming Exempt Status

One of the most common ways that employers try to get out of adhering to worker protection laws is to claim that their employees are either in a special category known as “exempt employees” or that they aren’t employees at all.

Certain categories of employees are considered exempt from some worker protection laws, including:

• Executives and managers
• Administrative salaried employees
• Computer professional salaried employees
• Commissioned inside sales employees
• Outside sales employees
• Professionals in the sciences, arts, and other industries, whose work is not quantifiable in units
• Self-employed individuals and independent contractors

Employees in each of these categories must meet specific job responsibilities and requirements in order to qualify as an exempt employee. If your employer tries to identify you as a “manager” when your job responsibilities don’t include directing the work of at least two employees, then you could be miscategorized. Certain unscrupulous employers will claim that employees are in exempt categories and then expect them to work long hours that aren’t adequately compensated.

In a controversial case earlier this year, the United States Supreme Court made a decision that impacted auto service advisers, or “service writers,” ruling that they are exempt from overtime under the FLSA. These dealership employees, the Court ruled, in advising customers which services to invest in and instructing the technicians which services to perform, can be defined as “salesmen,” thus exempting them from overtime. The San Fernando Valley, California car dealership was sued by their employees in 2012, instigating the Encino Motorcars LLC v. Navarro et al case that was brought to the Supreme Court twice.

Another trick that employers use is claiming that employees aren’t employees at all. We are living in a growing “gig” economy, where many employers are shedding expensive employees in favor of independent contractors who don’t enjoy as many protections as employees.

In exchange, independent contractors are supposed to be able to enjoy more flexibility in their jobs. However, if an employer exerts too much control or influence over an independent contractor, the contractor may be able to claim that they are actually an employee of the company and deserve overtime pay and breaks. You may have read in the news last year that Uber drivers sued the company in order to gain recognition as employees and the worker protections that employment status would entail.

Other Common Complaints

It would be impossible to highlight all of the possible wage and hour abuses that workers face, but some of the most common are:

• Failure to pay wages
• Failure to pay wages in a timely manner
• Unpaid commissions
• Unpaid bonuses
• Failure to pay unused vacation hours after employee left the company
• Failure to receive final paycheck
• Non-reimbursement of business expenses
• Failure to accrue sick leave
• Bounced paychecks
• Poor or inaccurate record keeping

How to Fight Wage and Hour Complaints

If your employer has violated federal, state, or local wage protection laws, you have several different options to seek justice and compensation.

If your employer violated the Fair Labor Standards Act, you can file a complaint with the Wage-Hour Division of the U.S. Department of Labor. For violations of California’s stricter labor laws, you can file a complaint with the Department of Industrial Relations. The U.S. government or the state of California will then dispatch investigators to look into your case. If they find evidence of violations, they can press criminal charges against your employer and seek back pay for employees, as well as additional “liquid damages.”

You have one other option: you can take your employer to civil court. You have the right to sue for the wages you are owed, attorney’s fees, and court fees. You can also ask for additional punitive penalties to punish the employer.

The challenge of pursuing a civil case against your employer is that the actual damages you suffered may not be significant enough to convince an attorney to represent you. Let’s say that Liz worked 100 hours of overtime last year and did not receive time-and-a-half as was required. She makes $16 an hour, so her employer owes her $800. Many attorneys won’t take on a case this small. They don’t want to risk putting lots of hours of work into the case and losing!

However, if your employer cut corners with you, it’s likely they also did the same for other employees. If Liz discovers that her company hasn’t been paying time-and-a-half to any of its 2,000 employees for the last ten years, this case just got a lot bigger. The scale of the injustice will pressure the employer to settle in order to protect its reputation. If the case goes go to court, a judge is more likely to slap a company with big punitive damages if it’s clear the company engaged in widespread worker mistreatment.

Make Sure You Call the Right Lawyer

Wage and hour cases are extremely complex and require an attorney who specializes in employment law. Additionally, you need to find a lawyer who has the resources and experience to handle a class action lawsuit. These types of lawsuits require a significant amount of manpower and hefty financial resources, as a class action can take years to settle or move through the courts.

If you’d like to discuss a potential California wage and hour case, please contact me for a free consultation.