BUSINESS LAW: WAGE & HOUR and OVERTIME CLAIMS

All Workers in California have the right to be paid a minimum wage of not less than $8.00 per hour, and have the right to overtime pay for hours worked more than 8 hours in any day. This applies regardless of the immigration status of a worker. This is a right that cannot be given
up by an employee, even if the employee has agreed to take a lower wage than the law requires.

Employers MUST follow the law.

Our firm prosecutes California employers on your behalf for unpaid wages, unpaid overtime, improper employee classification and improper wage or commission deductions and assists our clients to achieve compliance with the minimum wage, overtime, and record keeping requirements of all federal and state wage and hour, and prevailing wage laws.

Nonexempt California workers are entitled to be paid time and one-half their regular hourly rate for all hours worked over 8 hours in one day, and double time for hours worked over twelve hours in a day. If you are not paid hourly, but paid a weekly or monthly salary, the regular hourly rate is determined by dividing your salary by the total number of hours you work in a day, week, or month. Just being a "salaried" employee does not make you exempt from overtime. Overtime law is complex and should be discussed with a lawyer who is knowlegable about the law.

In California, no matter what your pay schedule, you must be paid at least $8.00 per hour for every hour you work, no matter what - and for qualifying hours, you must be paid overtime pay at the applicable rate - no matter what. That's the law and that's your legal entitlement.

Wages must be paid on time and in full every pay period and upon termination of your employment.

If your employer does not comply with the state or federal labor laws, you have the right to bring legal action against them, to make them pay all unpaid wages, penalties, interest, and in many cases, attorney fees. You cannot be fired for defending your rights.

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Employees should be aware if they are being subjected
to illegal practices that entitle them to back pay.

The most common violations by employers are:

1. Failing to Pay Final Wages in a Timely Fashion

An employer must pay all wages earned at the time of discharging an employee or within 72 hours after an employee quits without notice. An employer who willfully fails to do so may be required to pay a penalty of up to 30 days wages.

2. Excluding Accrued Vacation Pay from Final Wages

All accrued vacation pay must be paid at the time of departure, whether that employee is discharged or quits. Vacation pay that has not been accrued need not be paid.

3. Failing to Provide Itemized Wage Statements

Generally, employers must furnish itemized wage statements showing the employer's name and address, employee's name and social security number, pay period dates, gross/net wages, deductions, total hours worked, and all applicable hourly rates and the corresponding number
of hours worked at each rate.
Penalties may be assessed for each intentional failure to comply. Employers must also keep these records and permit current or former employees to copy them upon reasonable request.

4. Failing to Permit Meal/Rest Periods

Employees working more than 5 hours per day must be provided 30-minute meal periods; except that if the total work period per day is no more than 6 hours, the meal period may be waived by mutual consent. Employees required to work more than 10 hours per day must be provided a second 30-minute meal period; except that if the total work period per day is no more than
12 hours. The second meal period may be waived but only if the first is not. Limitations on meal periods must not be too restrictive, otherwise they will be considered time worked and possibly subject to overtime pay. Employees must also be given a paid 10-minute rest period to be taken in the middle of each 4-hour period. Substantial penalties may be assessed for each failure to comply.

5. Failing to pay Split Shift Premium Pay

Employer's willful violation of the provisions of Wage Order and Cal. Code Reg., Title 8, section 11050 (4)(c), which require split shift premium pay (one hour's pay) for a work schedule, which is interrupted by non-paid non-working periods established by the employer.

6. Failing to Reimburse Employees For Costs Of Uniform

Certain retail stores and restaurants unlawfully force their employees to purchase uniforms from the employer or require uniforms for which the employees are not reimbursed, in violation of the California Labor Code.

7. Taking or Receiving Tips

No employer or supervisor may collect, take or receive tips left for its employees by patrons. However, tip pooling among co-employees is proper.

8. Improperly Calculating Overtime

Generally, employees working over 8 hours per day or over 40 hours per week and the first
8 hours worked on the seventh day of work in one workweek must be compensated at 1 times their hourly rate. Any work in excess of 12 hours per day and any hours worked in excess of
8 hours on the seventh day of work in one workweek must be compensated at twice their hourly rate. Employers who violate overtime provisions may be subject to substantial penalties.

9. Mis-clasifying Exempt Employees

Some salaried employees who are classified as "managers" are improperly classified as exempt.
To be properly classified exempt, a "manager" must generally be paid a salary equivalent to at least twice the minimum wage, have specified customary supervisory authority over two or more employees, customarily exercise independent discretion and spend more than 50% of the time performing managerial duties. Improperly classified employees may be entitled to overtime compensation and may recover unpaid overtime for the last 3-4 years. In California misclassification can be a misdemeanor and subject the person responsible to criminal charges.

10. Failing to Pay Expense Reimbursement

An employer who fails to reimburse employees for expenses incurred in carrying out their employment is liable to the employee for the amount of all necessary expenses within the scope
of employment, interest, attorney's fees and costs. The employer also may not debit an employee's pay to cover and part of another employee or staff member's salary or expenses.

11. Failing to Maintain Policies

Against Discrimination and Harassment Employers must maintain properly drafted written policies against discrimination and harassment. Such policies must provide employees with a proper complaint and investigation procedure and must be enforced diligently. Having appropriate written policies in effect may relieve employers from substantial punitive damage liability in employee lawsuits, but if no such written policies have been drafted, the employer may have substantial liability on the ground of failing to maintain policies.

12. Failing to Accommodate Legally Recognized Disabilities

Employers must make reasonable accommodations to employees with legally- recognized disabilities that are known to them. Generally, employees with physical or mental impairments
that limit their ability to perform a major life activity qualify for accommodation. In such cases, reasonable accommodations must be afforded, unless it would cause undue hardship upon the employer. However, it is important to note that not every condition qualifies for legal protection. The law is quite complex in this area.

13. Refusing to Allow Appropriate Time off under FMLA

The Family and Medical Leave Act requires employers with 50 or more employees to permit up
to 12 weeks of unpaid leave during a 12-month period to care for an employee's "serious health condition," as defined by law, or that of a spouse, child or parent, or to care for a newborn or a child placed with the employee for adoption or foster care. However, the employee must have
been employed at least 12 months at a facility with 50 or more employees within 75 miles and
must have worked at least 1,250 hours during the 12-month period immediately preceding the leave.

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UNLAWFUL WORKPLACE HARASSMENT
& DISCRIMINATION

California law requires employers to maintain a work environment free of harassment and discrimination based on an employee's race, religion, color, national origin, ancestry, disability, medical condition, marital status, sex, age, pregnancy or sexual orientation.

California specifically mandates immediate and appropriate corrective and investigative action
by employers. Not only must employers stop the unlawful conduct, but must launch immediate investigations into allegations raised. Upon having reasonable knowledge that harassment or discrimination based on one or more of these target groups is occurring, an employer is required
to take reasonable steps to protect its employees from further acts of harassment and discrimination. If they do not, the employer may be liable for damages.

Small business owners carry the same exposure to harassment & discrimination lawsuits as do large companies. Employer liability in harassment & discrimination lawsuits can be substantial. California permits recovery of Actual Damages, such as lost wages and medical expenses, Emotional Distress Damages, Punitive Damages and Attorney Fees. The amount of Punitive Damages available to the employee largely depends upon whether the employer had actual or constructive notice of unlawful conduct and the appropriateness of the employer's actions in preventing and investigating the unlawful conduct.

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WRONGFUL TERMINATION and
RETALIATORY DISCHARGE

Generally, if an employee is an "at-will" employee it is legal in California for private, non-governmental employers to fire them without having a good reason to do so. This is called "employment at-will" and is governed by California Labor Code Section 2922.

However, notwithstanding the "at-will" provision in the law, there are many illegal reasons
for which an employee can be fired, even if the employment is "at-will", reasons that trigger
a wrongful termination case even if you are an "at-will" employee. When firing employees, employers often try to hide behind the "at-will" rule when the real reason for the termination is
an illegal or unlawful motive such as racial discrimination, sexual harassment, or in retaliation for being a whistleblower.

It is also illegal to fire an employee without good cause if there is an express or implied contract requiring good cause for termination.

Equal Pay Under the Equal Pay Act (EPA)

Employers are barred from paying women less than men if they are working on jobs that require equal skill, effort, and responsibility, and if those jobs are performed under similar working conditions. An employer may not retaliate against a female worker through firing or demotion because an EPA charge was initiated.

Wrongful Termination & Retaliatory Discharge

If you have been fired or demoted because of an "illegal reason" you have been wrongfully terminated.

An "illegal reason" may include discrimination based on race, age, sex, religion, marital status, national origin, or a disability. Wrongful termination or wrongful discharge cases include retaliatory discharge, workers' compensation discharge, and whistleblower litigation.

Whistleblower Litigation

The term "whistleblower" has many meanings in different contexts. There are many types of conduct which employment lawyers might refer to as forms of "whistle blowing." Certain laws provide protection against retaliation for those who report violations of laws, participate in investigations, or serve as witnesses in particular types of cases. Whistle blowing can consist of reporting crimes or fraud to government agencies or to management. Whistle blowing can also consist of serving as a witness in many different types of cases, or assisting in investigations of many different types.

If you are a current or former employee of a business, which has received money directly or indirectly from the United States government, you are eligible to bring a federal whistleblower lawsuit and receive a percentage of the recovery of any money falsely obtained by the business/employer from the United States government.

Originally, the Federal False Claim Act (31 USC 3729-3733) was enacted in order to get individuals to help the government stop rampant fraud being committed by companies providing inoperable rifles, spoiled food, and selling horses over and over to the United States government during the Civil War. The government, under the Federal False Claims Act, provides significant financial incentives for individuals to come forward and report the information revealing fraud on the United States government.

Essentially, the Federal False Claims Act allows citizens who are able and who have knowledge of fraud against the government to play an active role through their attorney to bring justice against those businesses that overcharge or cheat the government by filing what is called a Qui Tam lawsuit.

The statute of limitations on bringing such a false claim lawsuit (Qui Tam) is either six (6) years from the date on which the violation is committed or three (3) years after the date when the facts material to the right of bringing the lawsuit are known or reasonably should have been known to the official of the United States charged with the responsibility to act in the circumstances, but in no event, more than ten (10) years after the date on which the violation is committed, whichever occurs last.

There are a number of different types of cases that can be brought against such "Qui Tam" businesses who defraud the government, although the cases seem to fall into certain specific categories such as:

          (a) Medicare fraud;
          (b) defense contractor fraud;
          (c) environmental noncompliance;
          (d) bid rigging with actual false claim;
          (e) agricultural supplements; and
          (f) overcharging and/or product substitution and/or falsifying services performed.

Qui Tam claims have also been used to attempt to curb or stop fraudulent health care billing.

False billing includes: Billing for services or products not actually given or provided; inappropriate health coding misrepresentation; billing for medically unnecessary services or products; submitting duplication of medical bills; falsifying records to obtain payment including changing signatures, dates or adding information to the medical records.

Examples of false reporting (which occurs by institutions such as home health agencies, hospitals and nursing homes) are inflating costs for providing services or medical equipment; sending in patient/staffing data or statistics to increase a share of government payouts from Medicare or Medicaid; seeking reimbursement for patient care, when patients do not exist, under false names, or additionally, kickbacks (e.g. getting cash payments in return for referrals of patients or bartering arrangements in exchange for such referrals) for which compensation is received ultimately from the United States government under the Medicare or Medicaid program.

A current (or former) employee who "blows the whistle" on an employer is usually the most frequent individual who seeks to bring a Qui Tam or False Claims lawsuit. This is so because such individual has inside information not otherwise available to the public, and often such employee if no longer working with the business, may have been fired or retaliated against for bringing to light to the business the fraud and trying to correct it prior to his or her termination.

Frauds perpetrated on the United States government can be made public in the proper manner by individuals with personal knowledge of the particular scheme utilized by the employer to defraud the government.

The Federal False Claim Act provides significant financial incentives for such individuals to step forward with the advice of their counsel.

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FREQUENTLY ASKED QUESTIONS (FAQ's):

Question: Are all workers, including undocumented workers, protected by California Labor Laws?

Answer: Yes. All California workers - whether or not they are legally authorized to work in the United States - are protected by state laws regulating wages and working conditions.

Your employer cannot force you to accept less than the minimum, or overtime pay, even if they have you sign a written contract saying you will accept less. Such a contract is not legally enforceable against you, and the employer can be punished for having such a contract.

All workers who have performed services for an employer in California have the right:

  1. To receive at least a minimum wage of $8.00
    per hour for every hour they work
    ;

  2. To earn overtime pay -- with some exceptions -- after working
    more than eight hours in one day;

  3. To earn overtime pay -- with some exceptions -- after
    working more than 40 hours in one week;

  4. To file wage claims with the State Labor Commissioner if
    they believe their employer has violated state or federal
    wage and hour laws;

  5. To file workplace safety and health complaints with
    Cal/OSHA, the state's workplace safety and health program.

  6. To work in an environment free from retaliation for
    exercising their rights.

Question: What if I can't afford to pay attorneys fees or the costs of a lawsuit?

Answer: The Law Offices of David D. Murray represents employees in wage claims and overtime issues on a "Contingency Fee" basis. That means there are no attorneys fees due until we recover your wages, damages and other penalties. Then, we deduct our attorneys fees and costs from the amount we collect from the employer. In fact, we may even be able to obtain additional attorneys fees when the law allows. But if we do not collect money for you, we do not get paid. We will fight for you!

Please see our Contact Page for our email address.

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