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At the Law Offices of Daniel V. Santiago, P.C.
We provide the highest quality legal representation to victims of unlawful employment practices. We aggressively pursue recoveries for plaintiffs in all types of employment litigation including cases involving wage and hour violations and wrongful termination described below. If you or a family member has suffered an unlawful employment practice, please CONTACT US to arrange a FREE, CONFIDENTIAL CONSULTATION. It is important to note that we represent our clients on a contingency fee basis. Therefore, you pay nothing for our legal services unless we collect a settlement or judgment on your behalf.
We are prepared to assist you by carefully analyzing the facts, thoroughly advising you of your rights and potential remedies, and diligently pursuing a claim against your employer if you elect to do so. If we determine you have a valid claim for one or more wage and hour violations, then there are several options for pursuing your claim. Those options include: (1) engaging in informal negotiations with your employer; (2) filing a lawsuit in court; and/or (3) filing an administrative claim with the California Department of Industrial Relations — Division of Labor Standards Enforcement (commonly referred to as the “Labor Commission”). Generally, we would prefer to try to resolve your claim by engaging in informal negotiations with your employer. However, if your employer is uncooperative and/or unreasonable, then we would aggressively pursue your claim by filing a lawsuit in court and/or an administrative claim with the Labor Commission.
1. Unpaid Overtime
Under federal law, most employees are entitled to overtime compensation of 1.5 times their regular hourly pay rate for work in excess of 40 hours per week. Under California law, most employees are entitled to overtime compensation of: (a) 1.5 times their regular hourly pay rate for work in excess of 8 hours per day; (b) 2 times their regularly hourly pay rate for work in excess of 12 hours per day; (c) 1.5 times their regular hourly pay rate for work in excess of 40 hours per week; and (d) 1.5 times their regular hourly pay rate for working a seventh consecutive day in any workweek.
5 . Illegal Tip Pooling
It is important for California employees to be aware of the critical differences between legal and illegal payroll deductions. In general, legal payroll deductions include, among other things:
1. deductions for federal and state income taxes, social security taxes, and disability insurance taxes;
2. deductions for the employee’s benefit which the employee expressly authorizes in writing (e.g., deductions to pay life, health or disability insurance premiums);
3. deductions for the reasonable cost of board, lodging or other “facilities” furnished to employees in addition to their wages (e.g., purchases at company store);
4. wage garnishments; and
5. commission chargeback where the commission was advanced by the employer if the sale later falls through (e.g., the customer returns the merchandise)
In general, illegal payroll deductions include, among other things:
1. debts a terminated employee owes the employer;
2. repayment of training costs;
3. any part of wages previously paid by the employer to the employee;
4. deduction for workers’ compensation costs;
5. deduction for business losses caused by employee negligence in the absence of dishonesty, willful acts or gross negligence (e.g., cash shortages, breakage or loss of equipment);
6. commission chargeback where the commission was fully earned at the time of sale and the employee has not agreed in writing to the chargeback;
7. commission chargeback on returned merchandise sold by other employees or when the selling employee cannot be identified.
If you believe that your employer is violating (or suspect that your employer may be violating) the payroll deduction rules, you (and other employees) may be entitled to a significant award of back pay. Please CONTACT US for a FREE, CONFIDENTIAL CONSULATION to discuss your claim or simply to learn more about what your employer can deduct from your pay.
The regular hourly rate (which cannot be less than $10, the minimum wage under California law) generally is calculated by dividing the total weekly pay, including bonuses, by the number of hours such pay is intended to compensate (usually 40 hours).
Federal and state law (which consist of statutes, regulations, administrative orders and judicial decisions) are complex and confusing, particularly for employers and employees who lack knowledge about the legal intricacies and experience with applying them to real-world situations. Either intentionally or inadvertently, employers frequently misclassify employees in order to avoid paying overtime wages. Two of the most common way in which employers misclassify employees in order to avoid paying overtime wages are employers’ determinations that certain employees are (1) “exempt” from overtime laws or (2) independent contractors rather than employees.
Employers frequently misclassify employees as “exempt” from overtime laws in order to avoid paying overtime wages. Employees are not exempt just because they are on salary or because their employer says they are exempt. Rather, under California law, the exemptions generally apply only to employees who: (1) earn a monthly salary not less than two times the California minimum wage for full-time employment calculated; (2) are employed in an executive, administrative or professional capacity; (3) are primarily engaged in those duties (i.e., more than one half of the employees’ work time is devoted to such duties); and (4) regularly exercise discretion and independent judgment in performing those duties. Naturally, the determination of whether you have been properly classified as exempt from overtime laws requires careful analyses of the facts specific to your case as well as the exemption requirements.
Unlike employees, independent contractors generally are exempt from overtime and other minimum wage requirements. Therefore, some employers misclassify workers as independent contractors in order to avoid paying overtime wages. The distinction between independent contractors and employees depends on a number of factors including, among others, the degree of the employer’s control over the work performed and how it is performed. If your employer exercises a significant degree of control over your work, it is likely that you are an employee entitled to overtime and other minimum wage protections — even if your employer labels you as an independent contractor.
Under federal and California law, employees who have been wrongly denied overtime pay are entitled to recover, among other things, the unpaid overtime wages due. Additional remedies for overtime violations vary under federal and California law. Under federal law, where a “willful” violation is established, the employer failing to pay overtime compensation may be liable for liquidated damages of up to double the amount due. Under California law, although there are no such liquidated damages, there are “waiting time” penalties for delayed payment of overtime.
If you have not received overtime pay because your employer has determined that you are exempt from overtime laws or that you are an independent contractor, then you (and other employees) may be entitled to an award of lost overtime wages. Please CONTACT US for a FREE, CONFIDENTIAL CONSULATION to discuss your claim or simply to learn more about your rights under the overtime pay laws.
2. Unpaid Work “Off The Clock”
Closely related to overtime pay law violations is the problem of working “off the clock”. Employers frequently fail to include all hours worked by employees in the employees’ pay calculation, whether for overtime or otherwise. In general, employers must compensate nonexempt employees for “off-the-clock” work if the employers knew or should have known that the employees were working those hours. The critical issue in determining hours worked is whether the employer had actual or constructive knowledge of the employee’s work and permitted such work. It is irrelevant whether it was necessary for an employee to work long hours in order to complete an assignment, or whether another employee could have done the work in less time.
California wage laws require employers to treat the following times spent by employees as compensable time worked:
1. rest time;
2. meal time if the employee is not relieved of all duty during that period;
3. time spent preparing for work where such activities are an integral part of the employee’s principal activity (e.g., garment worker’s time spent distributing clothing at workbenches, or meatpacker’s time spent sharpening knives before and after work);
4. time spent donning and doffing protective gear and equipment for dangerous jobs where such activities are an integral part of the employee’s principal activity (e.g., battery plant worker’s time spent changing clothes at beginning of shift and showering at end of shift, where the work involved extensive use of dangerously caustic materials);
5. travel time during work or otherwise at the employer’s direction (not including commuting time to or from work);
6. time worked at home (including responding to e-mail); and
7. on-call waiting time spent primarily for the benefit of the employer and its business (e.g., the employee’s freedom to engage in personal activities is significantly restricted). In addition, automatic time clocks that round time and/or automatically deduct breaks whether or not they actually were taken often result in employees working off the clock in violation of federal and California wage laws.
If you believe that your employer is violating (or suspect that your employer may be violating) the working “off the clock” laws, then you (and other employees) may be entitled to a significant award of back pay. Please CONTACT US for a FREE, CONFIDENTIAL CONSULATION to discuss your claim or simply to learn more about your right to be paid for every minute you work.
How Can We Help
We are dedicated to protecting workers’ rights and holding employers accountable for various wage and hour violations under federal and state law. You (and other workers) may be entitled to a significant award of compensation for:
EMPLOYMENT / WAGE & HOUR
3. Unpaid Rest / Meal Periods
California employees enjoy statutory rights to rest and meal periods that are not subject to waiver by agreement.
California’s rest period laws state that employers are required to provide a compensated / paid 10 minute rest period for every 4 hours of work time and, to the extent possible, in the middle of the shift. For shifts of less than 4 hours, employees are entitled to a 10 minute rest period after 3.5 hours. No employer may require an employee to work during any rest period. An employer who fails to provide rest periods as required must pay the employee one additional hour of pay at the employee’s regular rate for each work day that the rest period was not provided.
California’s meal period laws state that employers must provide uncompensated / unpaid meal periods of at least 30 minutes for work in excess of 5 hours and a second meal period of at least 30 minutes for work in excess of 10 hours in a day. Employers may schedule meal periods any time before the end of the fifth hour of work. No employer may require an employee to work during any meal period. In fact, if an employee is required to perform any work or assume any responsibility during the meal period, he or she must be paid for the entire meal period. An employer who fails to provide meal periods must pay the employee one additional hour of pay at the employee’s regular rate for each work day that the meal period was not provided.
Under California law, up to two premium payments are allowable per work day: one for the employer’s failure to provide a rest period and another for the employer’s failure to provide a meal period. The applicable 3–year statute of limitations exposes even small employers to significant potential liability. For example, an employer with 10 employees earning $15 an hour could be subject to a $234,000 liability, i.e., the sum of the following: (1) $117,000 for rest period violations ($150 [$15 per employee X 10 employees] per day x 5 days a week x 156 weeks); and (2) $117,000 for meal period violations ($150 [$15 per employee X 10 employees] per day x 5 days a week x 156 weeks).
If you believe that your employer is violating (or suspect that your employer may be violating) the rest period or meal period laws, you (and other employees) may be entitled to a significant award of compensation. Please CONTACT US for a FREE, CONFIDENTIAL CONSULATION to discuss your claim or simply to learn more about your right to rest and lunch breaks during the workday.
4. Illegal Wage Deductions
It is important for California employees to be aware of the critical differences between legal and illegal payroll deductions. In general, legal payroll deductions include, among other things:
1. deductions for federal and state income taxes, social security taxes, and disability insurance taxes;
2. deductions for the employee’s benefit which the employee expressly authorizes in writing (e.g., deductions to pay life, health or disability insurance premiums);
3. deductions for the reasonable cost of board, lodging or other “facilities” furnished to employees in addition to their wages (e.g., purchases at company store);
4. wage garnishments; and
5. commission chargeback where the commission was advanced by the employer if the sale later falls through (e.g., the customer returns the merchandise)
In general, illegal payroll deductions include, among other things:
1. debts a terminated employee owes the employer;
2. repayment of training costs;
3. any part of wages previously paid by the employer to the employee;
4. deduction for workers’ compensation costs;
5. deduction for business losses caused by employee negligence in the absence of dishonesty, willful acts or gross negligence (e.g., cash shortages, breakage or loss of equipment);
6. commission chargeback where the commission was fully earned at the time of sale and the employee has not agreed in writing to the chargeback;
7. commission chargeback on returned merchandise sold by other employees or when the selling employee cannot be identified.
If you believe that your employer is violating (or suspect that your employer may be violating) the payroll deduction rules, you (and other employees) may be entitled to a significant award of back pay. Please CONTACT US for a FREE, CONFIDENTIAL CONSULATION to discuss your claim or simply to learn more about what your employer can deduct from your pay.
(866) 306-9527