WAGE AND HOUR VIOLATIONS

Nonexempt workers are entitled to certain wage and hour privileges under state law. Some workers are purposely misclassified as exempt so that overtime and meal breaks will not apply to them.

Worker Status

Exempt workers are generally paid a salary for all hours worked, regardless of how many, and do not receive overtime pay. Non-exempt workers generally receive an hourly wage and must receive overtime pay according to state laws.

An employee whose primary duty is performing non-manual work directly related to the management or general business operations of the employer could be exempt under the administrative exemption.

Highly paid computer professionals may not be exempt depending on salary or fees paid and on the work performed.

Overtime Requirements

Nonexempt employees are required to be paid overtime based on working the following:

• More than 8 hours in one day
• More than 40 hours in a work week

These employees are entitled to one and half times their regular hourly pay for each hour of overtime. Employees who work more than 12 hours in one day must receive twice their regular hourly rate for each hour worked over 12 hours.

Employees who work for 7 consecutive days must have their compensation rate at twice their wage rate for hours worked that exceed 8 hours on the seventh day.

Meal Breaks

Employees who work more than 5 hours in one day receive a 30-minute meal break. A second meal break must be provided if their work day is more than 10 hours.

If no 30-minute break is provided for every 5 hours worked, the employer must pay the employee at least one hour of his/her wages for every 5 hours worked.

If the workday is 6 hours or less, the employer and employee may agree to waive the 30-minute meal break. For a 12-hour work day, the parties may agree to waive the second 30-minute meal break.

Rest Breaks

Employees who work more than 3.5 hours in one day are entitled to a 10-minute paid rest break, and to a second 10-minute paid break if they work more tan 6 hours in a day.

Mileage Reimbursement

Employees who must drive from their employer to a work site must be paid a mileage rate of 56 cents per mile.

Final Paycheck

Employees who are laid off or discharged are entitled to their final check upon termination or the last day of work. If they quit, they must receive their check within 72 hours after the final day of work.

Litigation Process

Disputes or allegations of meal and wage violations can be remedied by the employee filing a complaint first with the California Department of Labor Standards Enforcement (DLSE) or Labor Board. To file a complaint you will need the following:

• W-2 or 1099
• Paycheck stubs
• Form 1-Labor board complaint
• Form 55-attachment for amounts owed for each pay period

You must file your complaint with the appropriate DLSE regional office or your complaint will be delayed.

Once filed, you will be required to attend a conference with the Labor Board with your employer and attorney where the allegations are discussed and the complaint completed. A hearing or trial is scheduled within a few months or up to one year depending on the volume of complaints with the regional office and the nature of your complaint. The trial is similar to any other trial except it is before an administrative judge. Once the order or decision is submitted, the parties have 10 to 15 days to appeal. If appealed, the matter is transferred to a civl court for adjudication.