Many employees have worked overtime at some point in their careers. As an employee, the additional hours you put in each week at work should translate into more pay. Unfortunately, some employers take advantage of their workers' hard work and dedication to their job duties by violating their rights to adequate and fair payment.

Whether your employer intentionally violated your rights to overtime pay by classifying you as an exempt employee or accidentally through sloppy bookkeeping or payroll errors, failure to pay you for extra hours in your work qualifies as wage theft. If you have not received your overtime payment as required, you can legally hold the employer accountable and receive compensation for the lost wages.

At Stop Unpaid Wages, we can help you understand your legal rights and offer the necessary legal representation to help secure the compensation you deserve, wherever you are in California.

What Federal and State Laws Say About Overtime Pay

As mentioned in the previous paragraph, the federal and state laws require all employers to pay their employees for extra hours they put in at work (overtime). Here is what federal and state laws say about overtime pay, respectively:

Federal Laws

According to the FLSA (Federal Labour Standards Act), unless you are exempt, you should receive your overtime payment whenever you work over forty (40) hours a week. The overtime you will receive must not be less than one and a half times your regular pay rate. For example, if your regular hourly pay rate is $20 and you put two extra hours into your work, the employer should pay you $30 for every overtime hour.

State Laws

Like federal laws, the Labour Law 501 specifies that if you are a non-exempt employee, you should receive one and a half times your regular pay rate whenever you work over forty (40) hours per workweek. Additionally, you have the legal right to receive this amount of overtime compensation whenever you work for:

  • Over six consecutive days weekly
  • Over eight hours daily

Under this statute, you should receive double payment whenever you work twelve hours in a single workday or eight hours on the seventh (7th) day of your workweek.

Unfortunately, not all employees qualify for overtime pay. Generally speaking, you qualify for overtime pay if you perform non-exempt duties and you receive your payments per hour. If you are unsure whether you meet the required eligibility criteria for overtime pay, you should consult with an employment attorney.

A Look at Types of Workers Who Are Ineligible for Overtime Pay

The following types of workers will not qualify to receive overtime payment for extra hours they have worked weekly:

  1. Exempt Employees

Labour Code 515 clarifies that one needs a “white-collar” job to qualify as an exempt employee. A white-collar job consists of administrative, executive, or professional duties. Additionally, you must have a monthly salary of no less than twice the minimum wage rate for a permanent job to qualify as an exempt employee.

  1. Outside Salespersons

If you are an outside salesperson, you will not be eligible for overtime (OT) pay if:

  • At least half of your job duties occur outside your workplace
  • You are at least eighteen years old
  • You sell services, contracts, or items

  1. Employees With Collective Bargaining Rights Members

Labour Code (LC) 514 states that certain employees are not eligible for overtime under collective bargaining agreements if the union's agreement

  • Already covers wages and working hours
  • Offers pay rates for overtime
  • Offers a working wage that exceeds the minimum wage by 30%.

  1. Independent Contractors

You would be ineligible for OT pay if you are an independent contractor, meaning you have authority over how your work is performed and are required to perform this work for an agreed-upon wage.

  1. Specified Professions With Their Overtime Regulations

Certain employees, including live-in nannies, personal attendants, camp counselors, agricultural workers, and household workers, are ineligible for OT pay.

  1. Workers With Different Workweek Schedules

A different or alternative workweek structure involves a written agreement between you, the employee, and your employer that you can work up to ten hours daily without OT pay.

Typical Overtime Violations That Many Employees Face

If you have not received your pay for OT, consulting with an experienced employment attorney is a decision you cannot regret. One of the most prevalent workplace violations is failure to compensate employees for their overtime work. This common issue often arises when an employer fails to compensate for all hours you have worked, often disguising it as tasks performed outside of work.

For example, that can happen when your employer asks you to perform certain work-related duties outside of your regular working hours without receiving OT pay for this time. When that happens, you could have a viable claim against your employer to receive unpaid wages.

Miscalculation of your OT is another prevalent workplace violation. The federal law requires you to receive payment for all hours you worked beyond the eight-hour time frame in a day or forty hours in a week. Deliberate or erroneous OT payments could leave you shortchanged.

Another tactic employers use to avoid paying you for your OT work is misclassification. By wrongly and intentionally classifying you as an exempt employee, your employer could attempt to sidestep his/her OT obligations.

Unfortunately, these scenarios are too common in workplaces and could negatively impact your life as a hardworking employee. If your employer has failed to pay you for OT or has misclassified you as an exempt employee, a seasoned employment attorney can help you comprehend your legal rights and options.

Evidence That Can Strengthen Your OT Claim

The strength of your evidence can significantly affect the outcome of your case. Hence, understanding which evidence can strengthen your overtime claim is crucial. Common evidence that could work in your favor to secure a favorable outcome includes the following:

  • Pay records — Reviewing your bank statements, wage statements, and pay stubs can help you compare the legally acquired wages and actual earnings
  • Timesheets — Reviewing your time records can help you determine whether the accounting team recorded your overtime hours
  • Employment contracts — Reviewing your employment contract can also help you determine whether your employer complied with the terms of classification, benefits, and payments
  • Witness testimony — Collecting witness testimonies from your supervisor and coworkers can also go a long way in proving that you are a victim of wage theft
  • Communications — Text messages, emails, and any other communication that can help prove your employer’s anticipations regarding inaccurate calculations and unpaid work

With the help of your employment attorney, you can effectively gather and compile all the evidence that can help strengthen your compensation claim.

Negotiating a Settlement With Your Employer

Sometimes, you can resolve overtime disputes with the court without taking the case to court. However, that is only possible if your employer is willing to negotiate a favorable settlement. Your employment attorney can help you facilitate the negotiations with your employer to secure a satisfactory settlement for the lost wages.

Often, an employer would be willing to negotiate a settlement to avoid a lawsuit's publicity and costs.  During the settlement negotiation, your attorney will be your legal voice to ensure you receive an adequate and fair settlement for your overtime and unpaid wages.

Settlement negotiations could specifically be an effective approach if your unpaid wages and overtime are due to your employer's error in recordkeeping and wage payment. In this case, your attorney can work to correct the problem and secure a fair settlement that makes you whole without having to file a lawsuit against your employer, which could damage your relationship with him/her.

If a settlement is an option in an overtime claim, your attorney can help you draft all the required evidence and legal documents to ensure the conditions of the agreement are fair, clear, and enforceable. A successful settlement could help you save time and resources that you could use on a lawsuit against your employer.

How to File Your Claim for Unpaid OT

As a non-exempt employee, you can file a claim for unpaid OT with the Labor Commissioner's Office. Once the labor commissioner receives your claim, he/she will investigate the matter to determine the appropriate solution. Depending on the available evidence, the labor commission could decide to do the following:

  • Refer the case to a hearing
  • Refer the case to a commission
  • Deny the claim

If the labor commissioner denies your overtime claim, you can file a lawsuit against your employer to secure your unpaid wages and other damages. Possible damages you could receive if your overtime lawsuit against your employer is successful include:

  • Interest on your unpaid wages
  • Your attorneys fees
  • Unpaid wages
  • Double damages in case the unpaid wages are not due to a good-faith mistake or error
  • Liquidated damages

To avoid losing your chance of securing damages for the unpaid overtime, you should file your claim before the expiry of the statute of limitations (deadline). Generally speaking, you have three (3) years from the date you offered your services or worked extra hours to file an overtime claim. However, this timeframe could vary depending on whether your employer acted fraudulently or willfully.

Involving an employment attorney in your case as soon as possible can help ensure your OT claim is filed within the required timeframe, increasing your odds of securing fair compensation.

How an Employment Attorney Can Help if You Have an OT Claim

Seeking the services of an attorney is vital if you have an unpaid overtime issue with your employer. An employment attorney can provide tailor-made legal guidance for your unique case to increase your odds of securing a favorable outcome. He/she will examine your case to see if you have a viable OT claim. In a nutshell, some of the roles of the employment attorney in your OT case include:

  • Evaluating your unique case — Once you hire an attorney, he/she will scrutinize your weekly work hours to determine whether you have extra works that deserve compensation
  • Gathering evidence — Adequate evidence is necessary to win a substantial amount on your OT claim. Fortunately, if you have an attorney, he/she can do the work of gathering the required evidence
  • Negotiating with your employer — You will rely on your attorney to advocate for your legal rights and maximum compensation during a settlement negotiation with your employer
  • Pursuing a legal action — If your employer is not ready for a settlement negotiation, your attorney can help you file a legal claim with the labour board or court to secure compensation for unpaid OT

Engaging an attorney in your case gives you the strength to oppose unfair employment practices by your employer and recover the wages you rightfully deserve.

Factors to Consider When Looking for a Dependable Employment Attorney for Your OT Claim

Working with a competent employment attorney is paramount because your employer likely has an attorney ready to protect his/her best interest too. When looking for a reliable employment attorney for your unique case, you should consider his/her:

Experience

While every legal expert was once an amateur, you cannot risk leaving your OT claim in the hands of an amateur attorney. Ensure the employment attorney you hire for your unique case has experience handling similar claims and has a proven track record of success.

Reputation

Another critical factor you should consider when looking for a reliable employment attorney for your unique case is his/her reputation. You can begin by reviewing your attorney's testimonials and online ratings to gauge his/her reliability and trustworthiness in the community.

If you notice many negative comments or reviews from his/her past clients, chances are the attorney's services are unreliable, meaning you cannot entrust him/her with your OT claim.

Courteousness and Communication Skills

Look for an approachable attorney who can keep you informed at every stage of the claim process. Additionally, the settlement negotiations and court language involve back-and-forth communication. Hence, the attorney you decide to work with for your unique claim should have excellent communication skills for effective legal representation.

The Legal Fees

Employment attorneys will charge varying fees for their services, depending on their qualifications, experience, and location. Therefore, you should inquire with your prospective attorney about his/her services fee before you make any significant commitment with him/her. Most employment attorneys will charge on a contingency basis, meaning he/she will expect payment once he/she wins your OT claim.

Considering these factors while searching for a reliable employment attorney can significantly reduce your options.

Other Common Types of Wage Theft You Ought to Know

As a worker, your employer can violate your rights in many ways. Wage theft is the most detrimental because it undermines your time and impacts your livelihood. In addition to OT violations, other ways you can become a victim of wage theft in your workplace include the following:

Minimum Wage Violations

Your employer is legally obligated to pay you at least the minimum wage. Failure to pay you or paying less than the state or federal-mandated minimum wage per hour is illegal, and your employer should be held accountable. This type of wage theft is common in industries where underhanded payments are prevalent.

Off-the-Clock Work

Sometimes your employer could require you to perform work-related obligations after or before clocking in, essentially working without compensation. That could include cleanup, preparation time, or work you perform after or before a scheduled work shift.

Rest and Meal Break Violations

You have a legal right to rest and meal breaks, depending on how many hours you work daily. Your employer violates labor laws when he/she fails to provide or denies you legally provided rest and meal breaks on your workday.

Illegal Deductions

Unauthorized deductions from your payslip, including money for work tools or uniforms, are another form of wage theft. These deductions can significantly reduce your income and affect your livelihood. Therefore, you should talk with an attorney to learn your legal options when they arise.

Paycheck Delay or Bouncing

Another prevalent form of wage theft by employers is the issuance of paychecks that purposefully or inadvertently postpone the payment of your wages.

Unpaid Salaries or Wages

An employer failing to pay you for all your hours, including unused paid-off or accrued vacation, can qualify as wage theft, and you have a legal option when that happens to you.

Tip Theft

If you are an employee in the service industry, tips are rightful earnings, and it is illegal for an employer to take or distribute them unfairly. For example, your employer cannot redirect your tip for his/her business use or take a share of it.

Failure to Pay Your Final Wages

After a work resignation or termination, your employer should give you a final paycheck. The denial or delay of a final paycheck violates labor laws, and you can legally hold your employer accountable.

Recordkeeping Violations

Employers are legally obligated to maintain accurate records of their employees' hours worked and wages. Falsely reporting your hours or failing to record them accurately is unlawful.

Failure to Compensate You for the Business Expenses

Labor laws require your employer to compensate you when you incur any job-related expenses, like tools or mileage. Failure to do so can qualify as wage theft, and you can take legal action against him/her.

Misclassification

Your employer could attempt to falsely classify you as an independent contractor because it is less of a financial burden to him/her, but that is illegal. If you are a victim of this workplace practice, an employment attorney can assist you in recovering the compensation you rightfully deserve.

Underpayment

As the name suggests, underpayment occurs when your employer pays you less than the agreed-upon salary or the state and federal-mandated minimum wage, leaving you financially disadvantaged.

Pay Stub Violations

Failure to provide itemized and accurate pay stubs is one of the ways your employer can commit wage theft because this document provides crucial information about your payment.

Recognizing and preventing wage theft begins with understanding these typical workplace practices. Employers must comply with the local, federal, and state labor laws that help protect employees' rights. If you believe you are a victim of wage theft, you should begin collecting the crucial evidence as soon as possible and contact an employment attorney.

A seasoned employment attorney can evaluate your case and explore the available options. In addition to helping you receive your rightful wages, addressing wage theft issues helps contribute to a fair workplace for every employee.

Frequently Asked Questions About OT Violations

Here are answers to some of the most common and frequent questions many employees ask about OT violations:

  1. Can I Join a Class Action Lawsuit if I Have an Unpaid OT Claim?

You can initiate or join a class action lawsuit if you have an unpaid OT claim. A class action lawsuit is a claim involving several claimants against the same defendant. In this case, one claimant (class representative) will sue the defendant (your employer) on behalf of all claimants (employees) with unpaid OT claims.

In addition to reducing litigation costs, joining a class action lawsuit against your employer can strengthen your claim against him/her and increase your chances of securing a favorable outcome.

  1. Can the Employer Retaliate Against Me When I File an Overtime Claim or Lawsuit Against Him/her?

State and federal laws protect you against any retaliation practices by an employer whenever you report an incident of wage theft or labor law violations. If your employer has retaliated against you by terminating your employment or harassing you, you should consult an employment attorney to know your legal options.

Find a Reputable Employment Attorney Near Me

Any form of wage theft, including OT violations, undermines hardworking employees' financial security and dignity. By comprehending what qualifies as wage theft and recognizing the signs of this illegal practice, you can proactively protect your legal rights and secure the compensation you rightfully deserve.

If you believe you are a victim of overtime violations by your employer, you should consult with an employment attorney without delay. Our attorneys at Stop Unpaid Wages are here and ready to help you secure the compensation you deserve and fight for justice. Call us at 424-781-8411 to discuss your legal remedies with our experienced employment attorneys, wherever you are in California.