By: Odell Law, PLC September 23, 2020

5 Common Ways Employers Violate Wage And Hour Laws

What Are Wage And Hour Laws — And Do They Apply To Me?

Under both California and federal law, employers are required to pay certain employees a minimum wage, and to pay them for all of the hours that they work. These laws establish minimum wage, overtime pay, record-keeping, and child labor standards that affect both full-time and part-time workers.

California’s wage and hour laws include a complex array of statutes, regulations, interpretations and precedents. The federal Fair Labor Standards Act (FLSA) works in tandem with California’s wage and hour laws.

In most cases, California’s wage and hour laws are stricter and more employee-friendly than the FLSA. For example, the minimum wage under FLSA is $7.25 per hour. In California, however, the minimum wage is $13.00 per hour for employers with 26 or more employees, and $12.00 an hour for employers with 25 or fewer employees.

Generally, both federal and state wage and hour laws apply to all non-exempt employees. Independent contractors are not covered by these laws. Similarly, exempt employees, such as most executive, administrative, and professional employees, are not protected by these wage and hour laws.

There are specific legal tests that are used to determine if an employee is exempt or an independent contractor. As described in more detail below, employers may try to avoid compliance with wage and hour laws that would require them to pay overtime or meal breaks by misclassifying employees. A skilled Orange County employment lawyer can work with you to help you determine if you are covered by these laws.

1. Failing To Pay Minimum Wage

With a few exceptions, all California employees (including exempt employees) must be paid the minimum wage that is set forth by the California Industrial Commission through a wage order. Independent contractors are not entitled to be paid the minimum wage.

Employers may try to avoid paying minimum wage in any number of ways. They may take advantage of employees who don’t know their rights — particularly immigrants who are less likely to speak out about mistreatment. They may also falsely try to claim that tips or other forms of compensation can count towards the minimum wage.

Consider The Case Of Alexia:

She works at a small restaurant with just 10 employees total. The minimum wage for her employer is $12.00 an hour, but her employer tells her that she will be paid $5.00 an hour because she receives tips. In some states, there is a lower minimum wage (known as the tipped minimum wage) for employees who receive tips — but not in California.

Alexia must be paid the full $12.00 an hour, and her tips cannot be counted towards meeting that amount. Alexia’s employer is violating California’s wage and hour laws, and may be held responsible through a Labor Board complaint, a lawsuit, or even a PAGA claim.

2. Requiring Work “Off The Clock”

Under both state and federal law, employers must pay their employees for all hours worked. Unfortunately, employers often try to get around these requirements by asking workers to do work before or after they clock in or clock out. This may even include requiring employees to wait in a line to be checked by security before leaving work, without pay — a practice that Apple engaged in, until the California Supreme Court held that they had to compensate employees for their time spent waiting to go through security.

This Can Happen In A Number Of Ways. For Example:

Juan works for a company that picks up and hauls junk for people and customers. Each morning, he has to drive to the truck lot in one location, and then drive to the main office 20 minutes away to clock in for the day. At the end of the day, he clocks out at the main office before returning the truck to the lot. Each day, Juan spends 40 minutes driving his truck to and from the main office — and he isn’t paid for that time, despite the fact that he is required to do this in order to work. Juan’s employer is violating wage and hour laws, and may be held financially responsible for it.

3. Not Paying Overtime

In California, employers are required to pay overtime to non-exempt employees. These laws require paying one and half times an employee’s regular rate of pay for any work in excess of:

8 hours in a workday; or
40 hours in a workweek.

Employees are also entitled to overtime pay for the first 8 hours of work that they do on the 7th day of a workweek. In addition to regular overtime, employers must pay employees double time overtime (twice their regular rate of pay) for any work in excess than 12 hours in a workday, and for any work over 8 hours on the 7th day of a workweek.

Employers may violate overtime laws in many ways, including not paying the required rate or moving their employee’s overtime hours into a new workweek to avoid paying overtime.

For Example:

Sara works at a fulfillment center for an online retailer. Her regular schedule is 8 hours a day, 5 days a week. During a busy time, she works 14 hours a day for 3 days in a week. Under California law, she is entitled to overtime for 12 hours, and double overtime for 6 hours. Her employer manipulates her time sheets by putting 6 of the hours into the following workweek. In this way, he only has to pay her regular overtime for 18 hours, and no double overtime. This is against the law, and could be the basis of a lawsuit.

4. Failing To Provide Required Meal Or Rest Breaks

California employers are required to provide non-exempt employees with regularly scheduled meal and rest breaks. Most employees who work more than 5 hours in a day must be given a meal break of at least 30 minutes. Employees who work a maximum of 6 hours a day can agree to waive this break. In addition, employees who work more than 10 hours in a day must receive a second 30 minute meal break (which an employee can waive in certain situations).

Employers must also provide rest periods to non-exempt employees. Every 4 hours, employees are entitled to a 10 minute break, unless their shift is less than 3.5 hours long. During rest breaks, employers cannot require their workers to be on call or perform any duties.

These laws are often violated by employers asking employees to skip their breaks, or to come back to work early while on break. They may also require employees to be available to work during their meal or rest breaks. In some cases, employers may ask employees to work through their meal breaks — but then pay them as though they had taken the break (i.e., asking employees to work off the clock).

5. Misclassifying Employees

Employers may try to get around wage and hour requirements by misclassifying their workers. This may include classifying an employee as an independent contractor, or a non-exempt worker as exempt. Employers may do this for a number of reasons, such as to get around the requirement to pay overtime or to pay certain benefits (in the case of independent contractors).

For Example:

Chris is hired by a local technology firm as an independent contractor. The company tells him that he is being brought on as a consultant for his expertise in coding. While Chris works from home, the company directs his work and tells him what hours he needs to be available. Other coders work for the company as employees. He is paid by the hour, but isn’t paid overtime. In this situation, Chis may be misclassified as an independent contractor.

If you feel your employer is violating your wage and hour rights, a seasoned Orange County employment lawyer can evaluate your situation and determine if it is possible to file a claim against your employer.

For more information, give us a call at 949-771-8173 or email us at rob@odelllaw.com.