Bay Area/San Francisco Wage and Hour Lawyers
Nobody likes to work for free, yet this is exactly what happens all across California when employees and employers are ignorant of wage and hour employment laws. The Zurada Law Firm has represented numerous employees and employers in wage disputes before the labor commissioner as well as state and federal courts. Wage disputes are sometimes referred to as “wage and hour” cases and encompass a variety of issue including:
- Failure to Pay Minimum Wage
- Failure to Pay Overtime
- Failure to Provide Mandatory Breaks
- Failure to Provide Sick Pay Leave
- Inappropriate Docking of Pay
- Independent Contractor/Employee Status
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We represent employees to protect their legal rights and to ensure that employers comply with federal, state and local employment laws. We also counsel employers about their legal responsibilities and how to minimize the chances of wage and hour litigation, and defend them against claims that have no merit.
Mandatory Minimum Wage in California and San Francisco
California wage and hour laws require every employer to pay no less than the minimum wage set by law. The right to be paid minimum wage cannot be waived, altered or negotiated away, meaning that the employee and employer cannot agree orally or in writing to a lower wage.
Minimum wage is governed by federal, state, county, and municipal regulations. The effect of this multiple coverage is that the employer must pay the highest minimum wage dictated by law. For 2010, the US minimum wage is $7.25 per hour, California minimum wage is $8.00 per hour, and San Francisco minimum wage is $9.79 per hour. Therefore, an employer in San Francisco must pay at least $9.79 per hour because of that city’s special minimum wage laws, an employer in most other places in California must pay at least $8.00 per hour in accordance with California minimum wage laws, and an employer in Arizona must pay at least $7.25 under the federal minimum wage law. All employees are protected by minimum wage laws regardless of whether they are here legally or illegally, and therefore illegal immigrants can sue under wage and hour laws just like any other employee.
California Overtime Laws
Employers are generally obligated to pay employees a higher hourly wage for each overtime hour, or portion of an hour, worked by the employee. Overtime pay is 150% of the regular hourly wage regardless of whether the wage being paid is the minimum wage or higher. For example, if an employee is being paid the minimum California wage of $8.00, he must be compensated at $12.00 per hour for overtime hours, and if the employee is being paid $20.00 per hour the overtime pay is $30.00 per hour.
Overtime is mandatory for any time worked by an employee in excess of 8 hours during any workday, 40 hours per week, and for the first 8 hours on the seventh consecutive day worked by the employee in a work week. These requirements are independent of each other and therefore each one entitles an employee to overtime. An employee is also entitled to double time pay for all hours in excess of 12 hours per workday, and for all hours in excess of 8 hours on the seventh consecutive day worked by the employee in a work week. Double time is 200% of the employee’s regular hourly wage.
Employers make several chronic mistakes that get them in trouble with overtime laws:
- Misclassification of Employees as Independent Contractors: Employers often misclassify employees as independent contractors believing that this will exempt them from overtime pay and minimum wage. An employee cannot become an independent contractor just by being classified as such, and while there is a complex multi-factor legal analysis of whether a worker is an employee or an independent contractor, the status is primarily determined by how much control the worker has over the hours and manner in which he or she performs the work. An employer should always seek legal advice before trying to classify a worker as an independent contractor because, while such classification may be beneficial and possible, it requires granting the independent contractor a high degree of freedom on a daily basis.
- Misclassification of Hourly (Non-Exempt) Employees as Salary (Exempt) Employees: Certain employees are classified as “exempt employees” because they are exempt from overtime laws, meaning that they are never entitled to overtime. These exemptions are quite complex but generally they apply to managers and other highly skilled employees such as doctors, lawyers, architects, and engineers. The key to each exemption is not the title given to the employee but their actual day to day work responsibilities, and an employee who does not fit specific legal exemptions cannot be made an “exempt employee” simply by switching them from an hourly wage to a salary. Employers should seek legal advice to determine whether an employee is exempt before determining that they are not entitled to overtime.
- Failure to Keep Time Records: Employers frequently fail to keep track of employee hours after they misclassify the employee as exempt and pay them a fixed salary regardless of the hours worked. Employers are obligated by law to keep precise records of all hours worked by non-exempt employees, and when an employer fails to keep track of the hours worked the employee has a much greater chance to prevail on his overtime claims.
- Miscalculation of Overtime Requirements: Employers often forget that the three overtime entitlements (more than 8 hours per day, more than 40 hours in a work week, and/or the first 8 hours on a seventh consecutive day of work in a work week) are independent of each other, and therefore overtime is due if any of the overtime conditions are met.
- Invalid Agreements Not to Collect Overtime: Agreements between employers and employees to eliminate or curtail overtime are prohibited and cannot be enforced even if the employee agreed to the condition voluntarily.
- Illegal Immigrants are Entitled to Overtime: Employers often assume that undocumented/illegal immigrants are not entitled to overtime, but California wage and hour laws apply to all workers, including illegal immigrants. One of the primary reasons for this universal application of wage and hour laws is to level the playing field so that employers cannot gain a competitive advantage by exploiting illegal immigrants and thus hurting businesses that hire employees who are here legally.
Meal and Rest Periods
Besides paying minimum wage and, if applicable, overtime and double time wages, each employer must generally provide mandatory meal and rest periods to its employees. An employee is entitled to a 30 minute unpaid rest period if he or she works at least 5 hours in a day, although there are limited circumstances when the rest period can be waived by the employee. An employee is also entitled to a 10 minute paid rest break for each 4 hours the employee works, and this mandatory rest period should be taken as close to the middle of the 4 hour work block as possible. Neither rest period can be interrupted by the employer. It is highly advisable for the employer to keep track of all rest periods on each employee’s time cards so there is no dispute over whether or not the employee received proper breaks.
Sick Time, Vacation Time, Improper Deductions, Payment of Commissions
Some wage and hour claims may involve other types of deceptive or unlawful practices, such as failure to pay earned sick time or vacation time, improper deductions from wages, failure to pay past due commissions, failure to pay wages or salary on time, failure to pay all wages due and owing upon termination.
Zurada Law Firm – Your San Francisco Wage & Hour Lawyers
Employees should be aware that they have very strong and enforceable employment rights, and employers must be careful to obey all applicable laws or face payment of overdue wages, together with stiff penalties, costs and attorneys’ fees. The Zurada Law Firm has represented employees and employers in wage and hour litigation in California and Federal Courts as well as in administrative proceedings before the Labor Commissioner. We honestly evaluate each case, identify any violations of wage and hour laws, and provide legal representation calculated to put our client in as favorable a position as possible.
If you are an employee and you believe that you have been treated unfairly in the workplace and have not been paid for the overtime, meal and/or rest time, vacation leave, sick leave or have any other questions about California wage and hour law, please give us a call.
If you are an employer and you have been served with a wage and hour action, or are concerned about wage and hour laws, please call us to discuss. We would be honored to be your Bay Area/San Francisco wage and hour lawyers, and your first consultation with us is always FREE. We take on meritorious employment cases on behalf of employees on a contingency basis, meaning that you do not have to pay us an hourly rate, and that we get paid only if you win.