Orange County Employment Lawyer Blog

In California it is illegal for an employee to work for an employer off the clock without being duly compensated. My Orange County Law Firm has received many inquiries regarding this issue. In California, the general overtime provisions are that a non-exempt employee shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless he or she receives one and one-half times his or her regular rate of pay for all hours worked over eight hours in any workday and over 40 hours in the workweek. Eight hours of labor constitutes a day's work, and employment beyond eight hours in any workday or more than six days in any workweek is permissible provided the employee is compensated for the overtime hours worked.

Overtime is calculated at one and one-half times the employee's regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.

There are, however, a number of "exemptions" from the Overtime law. An "exemption" means that the overtime law does not apply to a particular classification of employees. There are also a number of exceptions to the general overtime law stated above. An "exception" means that "overtime" is paid to a certain classification of employees on a basis that differs from that stated above.

Recently, a case was filed by a former employee of a major foreclosure law firm. She alleged that she and others were forced to work "off the clock" to keep up with a flood of cases over the past three years. The employee alleged that employees were regularly allowed five hours per week of overtime, but were also routinely required to work additional hours without pay.

If your employer requires you to perform any tasks before clocking in or after clocking out, you may have a claim for unpaid wages or unpaid overtime. If that is the case, please contact our firm to discuss your rights and options.

My Orange County Law Firm receives a voluminous amount of calls regarding this issue. The answer is, It depends. If your employer is letting you go (regardless of the reason), your final paycheck must be given to you immediately (i.e., your last day of work). If you are quitting without giving notice, your final paycheck must be given to you within 72 hours. If you are quitting with at least 72 hours advance notice, your final paycheck must be given to you on your last day of work. If your employer claims you owe him/her money, he cannot refuse to pay your final wages and he/she cannot deduct the amount he/she claims you owe from your paycheck this is an unlawful deduction from pay. Your employer must go through the legal process for collecting money as he/she would with a non-employee. If your paycheck is late, you may collect Labor code penalties from your employer which amounts to one day's pay for each day your paycheck is late up to 30 days.

Your final paycheck should include generally, all wages owed through your last day of work. This includes all hourly wages or salary, a pro-rata share of any accrued and unused vacation pay or paid time-off, and any other leave which can be used unconditionally by the employee. This would also include tips. Your employer cannot compel you to sign away your legal rights in a release or waiver in exchange for earned wages.

It seems lately that my Orange County Employment Law Firm has had several calls about lunch break issues. Specifically, these California employees are being required to work through their lunch break due to the "nature of the job". This issue has come up several times recently as it relates to security officers. These employees are being told they cannot leave their post and as a result, cannot take a proper meal break.

As I discussed in a previous post about Labor Code Section 226.7 and lunch breaks, the law provides that an employee must get at least a 30 minute lunch break whenever they work for more than five hours in one workday. However, an employer may ask that an employee waive their right to a lunch break. This waiver must be in writing, and employees must be free to not sign the waiver. Similarly, if they do agree to sign it, they must be free to revoke the waiver at any time.

If you have not signed a waiver of your lunch break, your employer cannot require you to work through your lunch break. Such is often the case for security officers, who are told they cannot leave their post for lunch. If no relief security officer is provided, the security officer is still entitled to a lunch break (and by break, it needs to be duty free, not scarfing down a sandwich while sitting at your post working). If that lunch break is denied to you, you may be entitled to monetary penalties as result.

In the recent California Court of Appeals decision Jeewarat v. Warner Brothers Entertainment, the Court relied on what is known as the "special errand doctrine". This doctrine provides an exception to the "going and coming rule" which means that an employee who has an accident during travel time to and from home to work is solely responsible for the accident, not the employer.

My Orange County Employment Law Firm has handled many cases regarding travel time. However, those cases usually center on whether or not an employee is entitled to wages while traveling for his or her employer. In the Jeewarat case, the employee was driving home from the airport after a three day business trip when he struck three pedestrians, killing one of them and injuring the others. Those pedestrians then sued the employee and his employer, Warner Brothers.

The Court held that the "special errand doctrine" provided an exception to the going and coming rule. Because Warner Brothers paid for its employee's airfare, hotel, and other travel expenses, the entire trip was not concluded until the employee reached his home. Consequently, the Court found Warner Brothers to be vicariously liable (responsible) for its employee's actions, and thus liable for damages to the pedestrians.

Almost all California employees are "at will" employees, meaning they can be terminated for any reason, so long as it is not an unlawful reason. So, if most employees are at will employees, what separates a termination from a wrongful termination?

California employees can essentially be terminated for any reason, so long as the reason is not an unlawful reason. Here are some of the more common unlawful reasons that would make a termination a wrongful termination:

1. An employee may not be terminated for lawfully reporting sexual harassment to a supervisor or to Human Resources;
2. Similar to above, an employee cannot be terminated for participating in an investigation of someone else's claims of sexual harassment or unlawful discrimination;
3. For exposing certain unlawful wrongdoings by the company or by a higher ranking employee of the company, commonly known as whistle-blowing;
4. For submitting a worker's compensation claim from injuries suffered at work;
5. For complaining to management or Human Resources about not receiving proper wages, overtime compensation, lunch breaks or rest breaks;
6. For filing a complaint with a governmental or administrative agency such as the DFEH or the Labor Board; and
7. Lastly, an employee is not at will if that employee has an employment contract designating a specific period of time.

I summarily discussed Labor Code Penalties in a previous post describing several of California's more common wage and hour penalties and their respective remedies. Here, I will discuss in greater detail what is commonly referred to as a "waiting time penalty."

When potential clients contact my Orange County Employment Law Firm, they usually just want what they are owed (in the form of unpaid wages, unpaid overtime, etc.) However, most clients never knew that when an employee separates from an employer, whether by termination or resignation, he/she must be paid all wages that are owed at the time of separation. This is true both in the case of termination or resignation, but the time frame for each to be paid in full is slightly different.

If being fired, the employee is entitled to all wages owed at the time of his or her termination. If the employee is resigning, he or she must be paid all wages due within 72 hours of resigning. If all wages are not paid within these time constraints, the employee, in addition to being able to recover all wages he or she is owed, is also entitled to a waiting time penalty. California's waiting time penalty entitles the employee to receive up to 30 days of wages, which means just that - thirty days of wages, not one month's pay!