Wage and Hour

1. How do you know if you are not being paid fairly?

2. And more importantly, what can you do about it?

The answers to the questions depends upon your employment status (contractor versus an employee) and whether you are an “exempt” or “non-exempt” employee.

Types of Employment

Contractor v. Employee

Your employment status as an employee versus a contractor determines whether you receive legal protections afforded only to “employees.” Just because your employer gives you a 1099 and tells you that you are a contractor does not mean you are one! In fact, the employer’s characterization of your employment does not inform your status as a contractor or employee. Instead, several factors must be considered against the backdrop of the facts surrounding your employment. The most significant factor is whether the employer has control or the right to control what work is performed and the manner and means of the work. More often than not, the facts actually surrounding your employment lean towards a determination of “employee” status. This may mean that your employer has illegally misclassified you and deprived you (and likely other employees) of their right to obtain the benefits of employment.

Exempt v. Non-Exempt

To make the answer to question one even more difficult to answer, once you have determined that you were misclassified as a contractor, you then need to discern whether you should be receiving overtime and meal and rest periods. But what does it mean to be an “exempt” employee? It means you are excluded from protection by the overtime and minimum wage laws.

The opposite of “exempt” being “non-exempt,” means you are protected by the overtime and minimum wage laws. Certain categories of employment are specifically identified as exempt by the Industrial Welfare Commission. Employees often make the mistake of believing they are not entitled to overtime because they receive a “salary.” Whether you receive a salary is not conclusive either way. Rather, like the contractor analysis, most often this is determined against the backdrop of several factors, payment of salary being only one of them. In California, some of the most informative factors include whether the employee exercises discretion and independent judgment in performing their job duties and whether the employee is paid at least two times the minimum wage.

Non-Exempt Employee Entitlements

Now that you have determined that you are an employee who is entitled to minimum wages, overtime/doubletime or meal/rest periods (or “non-exempt”)-- it is important to know what rights you may be entitled to.

Overtime: In California, you can obtain the right to overtime one of two ways, either daily (more than 8 hours per day) or weekly, more than 40 hours in a work-week.

Meal/Rest Periods:The California Labor Code provides that a non-exempt employee is entitled to receive one (1) thirty (30) minute meal period per eight (8) hours of work, and two ten (10) minute rest periods every four (4) hours of work. If you do not receive your meal/rest periods you are entitled to penalties amounting to one (1) hour of pay per meal period and one hour of pay per rest period denied.

It is likely that if the employer refuses to pay you overtime for example, the employer is engaging in the same behavior as to other employees, such that a class action or representative action under the California Private Attorney General Act of 2004 (“PAGA”) is the best vehicle for obtaining damages for wage and hour violations.

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