Phone Calls Eligible for Unpaid Overtime

Gavel with MoneyIn a recent case regarding phone calls and unpaid overtime, a police department was sued when it failed to pay a police officer who checked his work-provided cell phone while off duty.

Allen Versus the Chicago Police Department

Police Officer Jeffrey Allen estimated that he took an average of one or two off duty calls on his employer provided blackberry per day. Allen later sought payment from the Chicago Police Department (Chicago PD) for that time he spent taking the work related phone calls. Allen filed a lawsuit in the federal district court in the Northern District of Illinois alleging that the Chicago PD violated the Fair Labor Standards Act (FLSA) by requiring him to take calls while off duty.

The complaint alleges that Allen was a non-exempt employee, eligible to receive overtime pay for time when he worked more than 40 hours a week. In January the court approved a conditional certification of the class of plaintiffs, which meant that current and former Chicago police officers in the Bureau of Organized Crime also became eligible to join the lawsuit.

The Chicago PD responded to Allen’s claims by stating that it had procedures which allowed employees to report overtime worked, and that Allen and other police officers simply failed to comply with those procedures. However, Allen argues that there was an unwritten rule that if an officer wanted a promotion he or she should not report overtime for emails and calls taken off duty.

Emails and Phone Calls Count Toward Overtime

Legally an employer must pay an employee for all time worked. An employer may not discourage employees from reporting time worked just because it happens off their employer’s standard work schedule. An employer can get into trouble with the law if they schedule their workers for 40 hour weeks and then expect employees to also answer emails or take calls at home because extra time spent working off the clock needs to be compensated at the overtime rate for every hour worked over 40.

California’s fair pay law, Labor Code Section 510, also imposes stricter requirements that employers must comply with. In California an employer must also pay overtime when an employee works more than 8 hours in a single day and for any time spent working on the seventh consecutive day of the work week. In some circumstances double time also needs to be paid.

If your employer has failed reimburse you or pay your wages you may be entitled to a lawsuit. To learn more contact experienced California Employment Law attorney Michelle Baker. Schedule your Free Consultation today by calling (858) 452-0093.



Addressing Unpaid Time Off

Private AG ActHappy New Year from Baker Law Group! As the holiday season comes to a close, you may be returning to work after your longest vacation of the year. Now is the perfect time to assess whether your employer is providing you with the paid time off and wages you are entitled to.

Vacation Pay Rules

Although employers are generally not required to offer paid time off (PTO), many do. However, the employer can place restrictions on when you use your PTO. If an employer refuses to allow you to take off the requested days, and you refuse to take off days that are available, the employer must compensate you for the time not used.

Additionally, California Labor Code section 227.3 provides that employers are not allowed to require employees to use or lose their PTO or unpaid vacation time. The employer can put a reasonable cap on the amount of vacation time that an employee may accrue. However, if a court finds that the implementation of a cap is simply to deny or make it more difficult for employees to use their accrued benefits the policy will be invalidated. Also, keep in mind that these benefits can be enhanced or limited by a collective bargaining agreement.

Sick Pay Rules

Sick time and sick pay are governed by a separate set of rules. Sick time is treated differently because unlike vacation time or PTO, sick time is not considered earned compensation because it is only to be used in the event that you become ill.

Another common question is whether an employee can simply deduct PTO or vacation leave for parts of the day. This is usually up to the specific agreement between the employer and employee, and it is best to consult your employee handbook to determine this information. Some employers provide PTO, vacation, or sick time in 1 hour increments, but require that employees use their time in 4 hour increments.

Obtaining Compensation

This type of compensation can amount to a lot of unpaid wages over the years. This is one reason why so many workers are not receiving the full amount of compensation they are entitled to.

Although most employers are not required to provide PTO, vacation or sick leave, some cities and municipalities throughout the country have modified this trend by requiring employers to provide a minimum amount of these benefits. One example is San Francisco, where an employer must provide employees with 1 hour of sick leave for every 30 hours worked.

California employment law attorney Michelle Baker has many years of experience handling wage and hour cases, including lawsuits for unpaid wages due to failure to provide proper breaks. To schedule your Free Consultation, contact us at (858) 452-0093 today.



Hourly Employees Eligible to Sue for Unpaid Overtime

CLC 226If you are an hourly employee working without a guaranteed monthly rate of pay, you are likely eligible for unpaid overtime even if your hourly wage is high. Don’t get caught in the trap of working constant overtime. If you are not a salaried employee, this is a violation of your legal rights.

The Case: Negri v. Koning & Associates

In 2013, the California Court of Appeals reviewed a situation where an employee who had been making significantly more money than the average worker, was still subject to California overtime law. In Negri v. Koning & Associates, Mark Negri was an insurance claims adjuster for Koning & Associates. He was paid $29 per hour but was given no minimum guarantee of pay per month. Although he worked more than 40 hours per week, every week, he was never paid more than $29 per hour. As a result Negri sued his employer for violating California overtime law. The employer argued that Negri was a salaried employee, subject to exemption from overtime.

The Definition of a Salaried Employee

Under California law employees are not subject to overtime pay when:

  1. they meet one of the duties tests for exemption,
  2. they customarily and regularly exercise discretion and independent judgment in performing their duties,
  3. they earn a monthly salary that amounts to twice the minimum wage.

In reviewing these elements the court determined that Negri seemed to satisfy all of the above prongs of the test, except for the salary aspect. Although he earned much more than twice the minimum wage, there was a question as to whether his pay could be classified as a salary. The court found that the definition of salary is quite specific, it does not merely mean pay. Rather, it is “a fixed rate of pay as distinguished from an hourly wage” that is not subject to reduction because of the quantity of hours worked or the quality of work. The employer had admitted that Negri was paid based on the number of hours he worked, and that alone dictated his pay. Because of this the court held that Negri had not been paid a salary and was thus entitled to overtime pay.

What This Case Means for You

This is a very helpful case for employees because Negri would have been exempt from overtime pay if his employer had merely set an established pay rate. There are many reasons why an employer would want to require employees to be paid hourly. The biggest reason is that it ensures that they are only paid for time the employee is productive. However, if an employer does not guarantee a set amount of pay per month or year, the work is considered hourly and subject to overtime law.

Keep in mind that different categories of employees have different overtime requirements. To view a full list of the categories of employees exempt from overtime law visit the California Department of Industrial Relations website.

If your employer has not paid you the full amount you have earned you may be entitled to a class action lawsuit or settlement against them. Contact experienced California wage and hour attorney Michelle Baker today. Call (858) 452-0093 for your Free Consultation.


Is Failure to Pay Wages Equal to Wage Theft?

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.


Unpaid Overtime for Personal Attendants and Caregivers

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.