Does your employer owe you back pay, overtime, or other unpaid wages? Does your boss ask you to complete tasks before or after your shift is over? You may be eligible to file for money that you’ve earned through your hard work. Keep reading to find out about how to redeem these unpaid wages and more compensation if your boss broke the law.
Hourly workers are often expected to do work or complete tasks outside of their office, and the law requires them to be paid for this time spent. Many hourly paid jobs such as being an administrative assistant or secretary, a dental or medical assistant, a truck delivery driver, a financial clerk, a customer service representative, or other office jobs might require you to prepare for the day’s work or complete tasks outside of their normal shift.
The United States’ Fair Labor Standards Act (FLSA) ensures that people who get paid for each hour that they work and that they are paid for overtime hours spent. While the FLSA doesn’t define ‘work,’ it includes the time employees spend while under the control or direction of their employer, as well as time acting mostly for their employer’s benefit.
Let’s Define Off-The-Clock Work
Many employers avoid paying their employees for ‘off-the-clock’ work either through negligence or because they actively choose not to in order to save money. Nonetheless, not paying for this labor is illegal whether or not it is intentional. These activities can include the time that employees spend traveling, answering emails, or participating in training sessions. ‘Pre-work’ or unpaid preparation is also deemed work that needs to be paid according to the FLSA. This work includes loading or warming a truck, transferring equipment, or preparing a worksite. Other scenarios of off-the-clock work can occur after a shift has been completed, such as finishing a task, cleaning office space, completing medical charts or other paperwork, or returning equipment. If you, as an employee, are directed to redo a project, you must be paid for that extra work. Otherwise, your boss is acting illegally. You must also be paid for standby time when awaiting your next assignment while at the office.
Any time that you spend on work that you bring home to complete must be paid for. If you return phone calls that are related to work while at home or after your shift ended, you should be paid for that time. Even if you, as an employee, decide to go to work early to start work on the computer and read or respond to emails, you should be paid. If you work during your rest or meal break, this time is compensable. If you ‘clock out’ but continue to finish assignments, compile documents, make phone calls, or clean, this work is required to be compensated.
Employers can overtly or subtly encourage unpaid work in various ways. They may discourage you from reporting the overtime you worked. They could also ask you to complete more assignments than you can reasonably manage in the shift. One of the most common methods employers use to skip out on paying their employees is by misclassifying them as exempt from overtime. Exempt employees include many white-collar employees, those earning commissions, and independent contractors. If you believe that your employer has misclassified you as a worker in one of these categories, the chances are that you're owed money. Contact a labor attorney to verify your situation and get back the money you've earned.
Defining What Counts As Overtime
If you typically work a 40-hour work week at your place of employment but continue completing any of the tasks mentioned or other ones that benefit your employer, then not only should you be paid for this labor, but you should be paid extra for overtime. In California, overtime payment is due to nonexempt employees that work more than eight hours during any workday, exceed 40 hours of work in a week, or more than six days in a week. Overtime payment consists of one and a half times your normal wage for each hour you worked beyond the eight-hour limit and up to 12 total in any given workday. You should also be paid 1.5x your normal wage for up to eight hours that you work if it is the seventh consecutive workday in a week.
You should be paid double your normal wage for every hour worked beyond 12 in a day and any hours worked beyond eight on a seventh consecutive workday in a week. Please consult California’s Department of Industrial Relations page on Overtime for more details.
Overtime pay does not apply to every type of employee. These exempt employees are not entitled to receive overtime pay. Some of these exemptions include those employees who work in the healthcare industry or in a hospital or health institute, those who work as camp counselors, personal attendants of a non-profit organization, resident managers of small retirement homes (eight beds or fewer), employees that take care of children in a 24-hour residential institution, ambulance attendants and drivers on 24-hour shifts, employees of ski establishments during skiing months, agricultural workers, sheepherders and irrigators, live-in workers, and minors of 16 or 17 years other than those who do not legally need to go to school.
One of the current overtime exemptions, the so-called "white-collar" exemption prevents some salaried workers from receiving overtime pay if they make $23,600 or more per year. Under President Barack Obama, the Department of Labor (DOL) tried and failed to increase that number to $47,476 per year, which would have granted overtime privileges to millions of people in the United States. More recently, the Department of Labor officials in the Trump Administration has thrown around a new number of $33,000, but so far nothing concrete has been approved. Keep an eye out for proposed legislation, as you may be eligible for overtime pay in the near future.
California’s Minimum Wage Is On the Rise
Having described California’s overtime regulations, let’s make sure that you are getting paid enough per hour. California's minimum wage is on the rise. The 2019 minimum wage for workers in companies with 25 or fewer employees is $11.00 per hour, and it is $12.00 for workers in companies of more than 25 employees. The wage increases will rise by $1.00 per year until all employees make at least $15.00 regardless of the size of the company in 2023. Unlike for tipped workers in other states, in California, even tipped employees must earn at least the minimum wage. All tips are to be added to the wages of these employees and do not count towards the minimum wage requirement. If your company pays you below the minimum wage, contact a labor lawyer immediately so that they can help you get paid for what you’ve worked.
If Your Employer Refuses To Compensate You For Unpaid Work, Here’s What You Can Do
If, after discussing the situation of unpaid wages with your employer or supervisor, and they reject your claim, you can take legal action. The 2018 California Supreme Court case Troester v. Starbucks should give workers more confidence in suing their employers for unfair wage policy, and employers should be more wary of off-the-clock work. Even if it is just a couple of minutes of work before clocking in or after the shift is completed, this time needs to be compensated.
Anytime that you think that you are owed money, you should document by writing down on paper or in an email what happened as well as document each request for payment that you make to your employer. Let your employer have enough time, within a stated limit to get back to you regarding your request. In many situations, employers respond positively to these requests.
If your employer rejects your request or does not get back to you at all, you can file a Wage and Hour claim or lawsuit against your employer to get the wages and more back that you lost out on.
If you have been working 'off-the-clock' without compensation such as duties before or after your shift, administrative work, working during a rest or meal break, or if you have been required to stay and eat lunch at the office's front desk during, contact a labor attorney immediately.
If you want to bring legal action, you need to file a claim or lawsuit within two years of the situation occurring in order to be compensated for back wages. However, if your employer willfully denied you overtime pay, then the statute of limitations, in this case, will increase to three years.
Situations When Should You Sue Your Boss For Unpaid Wages or Overtime
You may not always need to go through the hassle of a lawsuit to recover your wages. You can recover unpaid wages or overtime payment through a wage claim. However, a lawsuit is a viable route to recover the money you've earned. California Labor Code 1194 states that you are entitled to the unpaid balance of what you are owed from your employer's failure to pay the full minimum wage or overtime as well as interest on the unpaid amount, attorney's fees, and the court costs of the lawsuit. Under federal law 29 U.S. Code § 216, if you win the suit, in addition to recovering the lost wages, you may also be entitled to an equal amount of the lost wages or liquidated damages.
Even if your unpaid wages only amount to a few hundred dollars, it can be worth filing a suit, or even a class action suit. If an employee chooses not to pay one employee for overtime or other tasks that should be compensated, it is likely that they are trying to take advantage of more employees as well. If you are not the only employee at the company who has suffered in a similar circumstance of lost wages, you may be able to file a class action lawsuit.
Compensation That You Could Receive From a Lawsuit
Depending on your situation, you could receive an extensive compensation package from what your employer failed to give you the first time around. Beyond the back pay, interest, emotional and stress damages, and lawyer and court fees, your employer may have violated other regulations that could send more money your way.
For every five hours that you work, you are entitled to an unpaid meal break of 30 minutes. If you were not given at least one break per five hours, you would be compensated one hour's worth of pay for each day that you weren't given that break.
In California, each employee has the right to take a paid break for 10 minutes for every four hours worked. If your employer prohibited you from taking these reset breaks, then you should get paid for one hour's worth of work for each day that this occurred.
As previously referenced, you may be entitled to liquidated damages. These damages are of the same amount of the unpaid wages that are owed to you and is a payment in addition to the back pay that you are owed.
If you left the company and your ex-boss failed to pay your last paycheck on time, then they might have to pay you a waiting time penalty. The amount of this penalty would be the average wage that you earned daily for each day that the paycheck was late. A maximum of 30 days for this waiting time penalty can apply, so even if the paycheck was late 40 days, you could only be compensated for 30 days of tardiness. Nonetheless, this could be a significant amount of money that can be awarded to you in addition to the back pay and other fees that your employer could owe you if you win your case. Just as a reminder, this penalty only applies to former employees, not for those currently at the company that the claim is filed against.
You Cannot Be Fired For Filing a Lawsuit Against Your Employer
In California, workers are protected against retaliation, such as unlawful termination. As a California resident, you are permitted to exercise your right to file a lawsuit without retaliation. If you get fired because you filed a claim for unpaid wages, this is deemed 'wrongful termination.' If this happens, the case you file against your employer will be even stronger. You will be eligible to sue for additional damages such as compensation for pain, suffering, and emotional distress from losing your job. Your employer might also have to pay punitive damages of up to $10,000 in fines or face a criminal sentence because of their wrongdoing towards you.
Your Identity Is Protected Under the Law if You File a Claim
The Wage and Hour Division of the Department of Labor reviews unpaid wages and back pay recovery claims. When you file a complaint, it is required by law to be completely confidential. Your name, as well as the names of staff members involved, and the nature of your complaint, are all kept confidential. Only you can give permission to reveal confidential information as the employee who filed the complaint. Your name would only be released in order to pursue allegations you make in a lawsuit.
Evidence You Might Need To Submit a Successful Claim
When you file a complaint, it could help your case if you are able to provide a record of your hours worked as well as any copies of your pay stubs. If you can submit documentation of your boss' pay practices, that could prove beneficial. There is no fee involved in order to file a claim with the DOL. A labor attorney can help you prepare these documents and to file a claim with all the details necessary to achieve the result you want.
Next Steps
The DOL will take a look at the company's records and may interview employees or former employees to determine the accuracy of the claim and how the company pays its workers. After the DOL gathers the evidence and interviews needed for the investigation, it will decide if your employer violated the FLSA. If your employer did violate the FLSA, the Wage and Hour Division would likely supervise the compensation process, so that you get the proper amount of payment and compensation when applicable. If even after the DOL makes their decision, your employer is unable or unwilling to comply with the compensation awarded to you, then the Secretary of Labor could bring a separate lawsuit against your employer to ensure compliance.
The Division of Workers' Compensation in California's Department of Industrial Relations may also review a claim against your employer for specific situations that apply to California laws. An experienced labor attorney can help you navigate both the local and federal claims process.
Find a Labor Attorney Near Me
To help you get all of the wages and compensation that you deserve from your employer or former place of employment, reach out to Justin Lo at Stop Unpaid Wages by calling 424-781-8411. Stop Unpaid Wages is devoted to making sure you receive every dollar that you have earned and are entitled to.
