Understanding Your Right to Fair Wages

State law and federal law both require that an employer pay you for all the hours that you work. Most people are paid by the hour. Your employer cannot require you to do work but not pay you the hourly wage.

You have the right to be paid overtime when you work extra long hours.

If you work more than 8 hours in a day, 40 hours in a week, or six days in a row in a week, the California Labor Code requires your employer to pay you 150% of your regular hourly wages for those extra hours. Under some circumstances, the employer may owe you 200% of your regular wages when the hours get very long. Just like with unpaid wages, an employer who violates this rule owes you the wages that should have been paid, an equal amount as damages, interest on the wages until you get paid, and payment of the lawyer fees necessary to collect that money on your behalf.

Federal law also requires overtime, but only after 40 hours in a week. Depending on your individual circumstances and the county that you work in, a lawyer can help you decide whether it is better to make your overtime claim under California law, federal law, or both.

Just like with unpaid wages, an employer who does not pay for overtime is stealing from its employees and violating important state and federal laws. Courts take these violations very seriously. For example, in a lawsuit under the federal law, a judge has to sign off on any settlement of your unpaid wages just to make sure that you get every dime coming to you.

You have the right to take meal breaks and rest breaks.

The California Labor Code requires that most employees be given a 30 minute meal break after five hours of work. On very long days, employees may be entitled to a second meal break. The employer must provide you with the 30 minute meal break on time. If an employee cannot take a meal break or does not take a meal break on time, the employer must pay an additional hour of wages. This is called a premium. Employers do have the right to punish or even fire employees who keep taking late lunch breaks. However, they must pay the premium no matter what. This is a tool that the  law uses to keep employers from making employees work through their lunch and then claiming that it was the employees choice. The employer also owes a premium if the employee is not provided with a full 30 minutes relieved of all duty. “Working lunches“  at your desk or workstation generally do not count as lunch breaks.

Employees in California are also entitled to take a paid 10 minute rest break in an appropriate rest area (that is not a bathroom) in about the middle of every 3 1/2 to 4 hours of work.  If the rest area is a meaningful distance from the workspace, then travel time to and from the rest area cannot be counted against the 10 minutes. For example if it takes four minutes to get to the rest area, so it is an eight minute round-trip, the employer needs to provide an 18 minute rest break. An employer does not need to ensure that employees take their rest breaks. They only have to make the rest break available. This means that winning rest break claims usually means that many employees need to act together to provide evidence that the employer pressured people not to take breaks. Just like with lunch breaks, if an employer does not provide the opportunity to take a rest break, affected employees are entitled to an extra hour of pay as a premium.

You have the right to be paid on time.

The U.S. Fair Labor Standards Act requires employers to pay employees on time. Failure to pay on time is treated as a violation of the minimum wage rules. Even if the employer ultimately pays the wages, the employer must still pay an additional amount equal to the late paid wages as a penalty. The employer must also pay for your legal fees necessary to collect those additional wages.

You are entitled to accurate pay stubs.

Both California law and federal law require employers to maintain accurate records about how much you work, and how much you are paid. In addition, they must provide you with an accurate pay stub that explains who your employer is, how many hours you worked, how much you were paid, what your hourly rate was for each category of pay, and all withholdings such as taxes and benefits that are taken from your paycheck. California law imposes penalties against employers who fail to provide accurate pay stubs, and those penalties can add up to a very large amount of money.

You are entitled to complain about your pay without facing retaliation.

Both California law and federal law prohibit employers from retaliating against employees for  complaining about their pay.  An employee’s protection against retaliation is highest if the employee complains in writing, especially if it is done through an attorney or to a government agency. However, even an email to human resources may be enough to protect an employee from retaliation.  If an employer retaliates, demotes, or reduces the pay of an employee in retaliation for complaining about pay violations, the employer can be subject to a wide array of financial penalties including payment of lost wages, payments for the stress associated with losing a job, a penalty in an amount equal to the lost wages, and the attorney fees made necessary to collect your damages.

You are entitled to collect penalties your employer owes to the state of California, and keep a portion of those penalties.

The California Labor Code includes a set of laws called the Private Attorneys General Act (often called PAGA). These laws allow employees whose rights are violated to collect penalties of up to $200 per violation on behalf of the state. 25% of the penalty goes to the affected employee. The other 75% goes to the State. The employer also has to pay the attorney fees necessary to collect the penalties. When an employee files a claim under these laws, the employee collects the penalties due to all similar employees. So, for example, if one employee is denied a meal break, that employee can seek the penalties for every day they have been denied their break, and also seek to enforce the penalties for all other employees who were also denied their meal breaks.

Sometimes the penalties stack up and become very large. For example, an employer who has employees work through their lunches and changes the work records to make it look like they took their lunches will have a failure to pay wages for all hours work violation, a meal break premium, and a bad paycheck report violation. PAGA imposes penalties for each of these things.

You have the right to reimbursement of your expenses.

The California Labor Code requires employers to pay for their own business expenses. If an employee is required to use their own vehicle for work, their own cell phone for work, or required to purchase materials for work, the law will usually require that the employer pay the employee back promptly for such expenses. Failure to reimburse can trigger a penalty, and allow you to get your reimbursement using a lawyer that the employer needs to pay for at the end of the case.

There can be many complications enforcing your rights.

Although employees have substantial rights, sometimes it can be very complicated to enforce them. 

First, different deadlines apply to for different rights. Some claims must be brought within one year, other claims may have two or three years.  Employees who belong to unions may have very short timelines, sometimes as little as week.

Second, some employees are exempt from some or all of these rules. A lawyer can help you figure out which rules apply to you. Even if you are exempt from some of the rules, you may not be exempt from other rules. For example, outside sales people who spend 52% of their time doing non sales work, may have rights under the California Labor Code but not under the federal law. Salaried employees may not have overtime rights, but are likely to still have reimbursement rights.

Third, although employees can lodge their own complaints with government agencies, those agencies do not always pursue all of your rights, nor do they prioritize your claim to get it done quickly. Having your own attorney can help you get all the relief you’re entitled to, and get it faster than going through a government agency. Since your employer has to pay for your attorney at the end of the case, It is easier to hire an attorney for this type of claim than for other issues. You should never have to worry about paying a lawyer out of your own pocket to collect your wages.

 Fourth, employers are used to being in charge. They often do not take complaints by employees seriously because of the power difference that exists in the workplace between manager an employee. Hiring an attorney can change that power dynamic so that your employer has to listen. And if they don’t, an attorney can file a lawsuit on your behalf.

Contact me if you would like some help.

I work every day with the many laws governing the simple proposition that a fair day’s work deserves a fair day’s pay. I am happy to consult with you to see how I can help if you believe your employer has not paid you fairly. There is no cost for the consultation, and when I take a case I am paid at the end based on what I recover for you. I never ask clients to pay me out of their own pocket.