Unpaid Wages – Page 2

California and Federal law requires employees to be paid for work performed, in the amount of at least the minimum wage, as well as any applicable overtime. Unfortunately, many employees are not paid at the rates they should be. Many believe that when employers do this, it is tantamount to stealing their workers wages because the employees have rightfully earned them, making the wages the property of the employee. By keeping this property it is no different than taking the money right out of their wallet.

The California Labor Commissioner in particular is fond of using the expression wage theft. In a recent case the commissioner filed a mechanic’s lien to recover more than $240,000 in unpaid wages from 31 construction workers at a Holiday Inn Express in Eureka California. The construction contractors were not properly licensed contractors, and had been purposefully misclassified as independent contractors in order to avoid properly paying them for every hour worked and to avoid paying overtime.

This action was taken as a part of the Labor Enforcement Task Force (LETF), an agency formed by members of the Labor Commissioner and Cal-OSHA offices to tackle labor and employment law violations in the underground economy. The complaint against the employer was first filed to the LETF by the local Carpenters Union.

The investigation also uncovered significant workplace safety violations, including unsafe scaffolding, ladders, and training, which totaled up to $27,000 alone in workplace safety citations on top of the $247,681 in unpaid wages. One reason the amount of unpaid wages was so high for workers on this single project is because the workers were paid with checks that bounced, and the employer also violated meal and rest break requirements.

The mechanic’s lien placed on the property will be used to ensure that the workers will be paid for all the time they are owed, and that the fines and assessments for the violations of the labor code are also paid off.

This case shows the problems of working in the underground economy. Business who try to operate under the radar of regulatory agencies often do so in order to cheat their workers and avoid paying income taxes. If your employer has committed wage theft against you, contact the experienced California employment attorneys of Baker Law Group, LLP today. Call (858) 452-0093 to schedule a free consultation.

This year the California Court of Appeals clarified the standard for when a caretaker is eligible to receive overtime. California law allows employers to avoid paying overtime to persons employed as “personal attendants.” Personal attendants perform tasks such as dressing, feeding, and supervising their clients. However, what if the personal attendant performs more tasks than these?

In Cash v. Winn, 205 Cal.App.4th 1285 (2012) the court examined this issue. The plaintiff in this case, Joy Cash, was employed by Iola Winn. Ms. Cash was not a licensed nurse, but cared for the 90 year old Ms. Winn as her personal assistant. However, after she stopped working Ms. Cash sued Ms. Winn for unpaid overtime. Ms. Winn claimed that Ms. Cash was only a personal attendant, and was thus exempt from California overtime requirements. The case went to trial and in a special verdict the jury found that Cash was actually more than a personal attendant because she had engaged in regular health care related services such as taking blood pressure and administering medication. Although the jury found that these services accounted for less than 20% of Ms. Cash’s total responsibilities.

Nevertheless, the court sided with Winn on appeal, who argued that the law did not provide an exception to the personal attendant exemption just for the regular administration of health care services. The court found that someone who is not a trained professional will not qualify under the health care services exemption if they perform these duties less than 20% of the time they work.

What Caretakers Are Eligible to Sue for Unpaid Overtime

Although the court ruled that Ms. Cash was not eligible for overtime, it also clarified the types of positions that are eligible. A personal attendant can be eligible to receive overtime if they perform a significant amount of work in addition to tasks such as feeding, clothing, and supervising their clients. If 20% or more of a personal attendant’s time is taken up with other tasks above feeding, clothing, or supervising then the worker may be eligible for overtime.

For example, housework is included in supervision, but personal attendant housework is limited only to the clients’ direct personal space. Any additional housework would count towards finding that the employee is more than just a personal attendant. If the attendant also performed grounds keeping duties as a part of their regular employment agreement, these duties could push them into the caretaker rather than personal attendant category, entitling them to overtime.

Further, a personal attendant who has received special training, including but not necessarily limited to a licensed nurse of any type (professional, registered, graduate, or trained) would likely qualify under the health care services exception of the personal attendant category.

So although the ruling in Cash v. Winn was unfavorable for personal attendants without medical training the case left the door open for caretakers who perform grounds keeping or other non-supervisory duties; and also left the door open for those with medical training to sue employers for unpaid overtime.

If your employer has failed to pay overtime the California employment law attorneys of Baker Law Group, LLP can help. Call us today for a free consultation.

Is Failure to Pay Wages Equal to Wage Theft?

Unpaid Overtime for Personal Attendants and Caregivers