California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

California labor law attorneys have been working “overtime” to assist employees in collecting additional pay for working split shifts. According to the California Industrial Welfare Commission, a split shift is defined as “a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than a bona fide rest or meal period.”  If such a schedule is worked then the employer must pay a “split shift differential,” which is equal to at least all hours worked multiplied by the minimum wage, plus an extra hour of minimum wage (unless the employee resides at the place of employment). The rationale is that an employee should receive a higher wage in exchange for working outside the normal shift period. The split shift differential only applies to non-exempt employees who are compensated at or slightly above the minimum wage. If the employee is paid significantly above the minimum wage, then the compensation minimum is already met and the employer does not need to offer the extra hour of minimum wage. 

Some employers attempt to avoid paying the split shift premium by forcing an employee to take longer breaks or multiple breaks during the day. This issue is complicated because California law provides that an employer must provide meal and rest breaks. An employer may not employ an employee for more than five hours per day without providing a meal period of at least thirty minutes. However, if the employee works no more than six hours per day, the meal period may be waived by consent of both parties. A second thirty minute meal period must be provided if the employee works more than ten hours per day. If no more than twelve hours are worked per day, then this second meal period may be waived by consent of both parties if the first meal period was not waived.  For example, a work day may look like this:

8:30-1:30 (5 hours)
1:30-2:00 Required meal break
2:00-7:00 (5 hours)
7:00-7:30 Required meal break
Then any additional hours

Although the thirty minute breaks are mandatory, the law does not prohibit an employer from requiring longer breaks. If a longer break or additional breaks are provided, the question then becomes whether the break period is reasonable. If a two or three hour break is required, it is more likely that the schedule would be considered a split shift and the premium must be paid. 

If you believe you are working a split shift and not being fairly compensated, contact an experienced California labor law attorney for an unbiased evaluation of your situation.
 

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California Employment attorneys are at it again- further defining the rights of employees. If you do not enjoy the luxury of working at home, you must spend time traveling to and from your place of employment. Generally, this time is not compensable as “hours worked,” because you are not considered to be under the control of your employer. But what if your employer furnishes you with a company vehicle and requires certain tasks to be completed before and after traveling from home? California Employment attorneys have brought this issue before the Court of Appeals in a class action filed by employees of the Lojack Corporation. See Rutti v. Lojack Corporation, Inc., No. 07-56599, US Court of Appeals (9th Cir.) (March 2, 2010)  The alarm technicians sought payment for time spent driving to and from job sites in company vehicles. In addition, they claimed compensation for certain “off the clock” activities such as logging assignments, mapping routes, and prioritizing jobs.

Upon reviewing the federal Employee Commuting Flexibility Act (ECFA), the Court held that travel time and any de minimus activities were not compensable. While many California employment attorneys representing employees may disagree with this decision, nevertheless at this point this will likely govern compensation in these areas.

First and foremost, the ECFA clearly states that an employer is not required to pay employees for travel time to and from the location of the place where principal job activities are performed. An employer is also not required to pay for any activities that are incidental to the use of the vehicle (i.e. getting gas, having the oil changed, or washing the vehicle). The employer may include mandatory use of a company vehicle and restrictions on the use of the vehicle as a condition of employment. Restrictions are valid as long as they do not constitute additional cognizable work. The Court held that Lojack’s requirement that company vehicles be used only from travel to and from work and that there be no passengers was merely incidental and did not constitute compensable work.

Secondly, “off the clock” activities are not compensable unless they are related to the “principal activities” of the job and not merely “de minimus.” Principal activities are generally those tasks that are performed as part of the regular work of employees in the ordinary course of business. When the tasks are actually performed is irrelevant. On the other hand, de minimus activities consist of additional work that requires a miniscule amount of time and does not take place on a regular basis. The Court in Rutti indicated that the employees’ preliminary activities such as filling out forms appeared to be de minimus and not compensable, but that some postliminary activities such as job dispatches were vital to the business and could be compensable.

In light of Rutti, the important thing for employees to remember is that whether travel and off the clock actvities are compensable is a very fact specific determination. If your job requires the use of a company vehicle or additional work time, you should consider the folllowing:

1. Reach a formal vehicle use agreement with your employer and have it put in writing.
2. Establish regular work hours. If you work more than 40 hours per week, including compensable travel time, you are entitled to overtime.
3. Be aware of any attempts by your employer to turn compensable activities into non-compensable activites.
4. Contact a knowledgable California labor law attorney or other employment attorneys for an unbiased evaluation of your particular situation.
 

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California underwriters may indeed be owed overtime pay. This job title and the duties of underwriters, at least at one bank, have been examined in a recently decided case called Davis v. J.P. Morgan. In this case the court in the second circuit decided that underwriters approved loans under established company guidelines and their duties are for the most part non exempt duties and therefore these employees are entitled to overtime pay.

Under Federal regulations, if an underwriter works in a bona fide administrative capacity, if they perform work "directly related to management policies or general business operations" and "customarily and regularly exercises discretion and independent judgment, then they are likely classified as an exempt employee." This is different than an employee who may work in a "'production' or, in a retail or service establishment, 'sales' work." 

In Davis v. J.P. Morgan, underwriters at Chase were primarily responsible for selling loan products under management's guidelines. As the Second Circuit put it, "Underwriters were given a loan application and followed procedures specified in the Credit Guide in order to produce a yes or no decision."

California Underwriters being misclassified as exempt employees might be common issue for all underwriters in this profession in California. If the California courts follow this ruling and others like it, thousands of California underwriters could be entitled to overtime pay. Some of the largest institutions employing underwriters in California are Citigroup (NYSE: C), J.P. Morgan (NYSE:JPM)   Bank of America (NYSE:BAC) and Wells Fargo (NYSE:WFC)

Underwriters in California, if owed overtime pay, may collect up to 4 years of back pay under the liberal California overtime pay laws.

If you are a California underwriter and would like to find out if you are entitled to overtime pay, it is wise to contact a California labor law attorney.
 

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Despite a wave of class action lawsuits, California employers continue to find ways to deny their workers overtime pay. Under California law, all employees are entitled to overtime pay unless they are considered “exempt.” Exempt employees are typically professionals, administrators, or executives whose jobs require among other things, a high degree of independent judgment. They must earn at least two times the minimum wage (approximately $28,000 per year) and more than fifty percent of their work must consist of non-exempt duties such as clerical duties, customer service, or working along specialized technical lines. A common strategy for employers is to misclassify employees as managers or assistant managers in order to avoid paying overtime; however, it is the employee’s activity and not their job title that determines whether overtime is due. Unlike federal law that focuses on the “primary duty” an employee is expected to perform, California law is based on what work the employee “engages in” or actually performs. For example, if a “manager” in an automobile company spends more than half of their time working on the line – the same activities performed by non-exempt employees – that manager may be entitled to overtime pay for all time in excess of 8 hours per day or 40 hours per week.

Many times, an effective way to combat such tactics by employers is for an employee to file a class action lawsuit. If one individual files a lawsuit and prevails, the amount the employer pays will likely not be enough to change the employer’s wrongful practices. Most employers conduct a cost-benefit analysis. Typically, it is cheaper for them to account for paying one or two employees in a lawsuit than paying all employees overtime pay. On the other hand, if one worker brings a lawsuit on behalf of all similarly situated workers, the amount potentially owed by the employer will be significantly more substantial and thus give them an incentive to comply with the law. Furthermore, an employee who takes the initiative to file a class action will typically be awarded more money than those workers who sat idly by and did nothing. Many class actions for overtime pay are successful because employers do not keep a record of exempt employees’ hours or the activities they engage in on a daily basis. Even better, in California, a single class representative may initiate a California class action lawsuit.

In addition to “misclassification,” some employers will pay overtime but not at the required one and a half times the employee’s regular rate of pay. Other typical class action lawsuits include claims for missed meal breaks and rest breaks, failure to pay for business miles or travel time to/from different business locations, paying bonuses but not paying overtime, making employees pay for their uniforms, paying employees with a check that requires a fee to cash, and not paying for mandatory company meetings.

If you believe you are owed overtime or other pay, you could be awarded damages in a class action lawsuit. Contact a knowledgeable California labor law attorney to learn about your rights and receive a complete evaluation of your situation.
 

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Given the dismal state of the economy, many California workers are walking around with the possibility of being laid off looming over their heads. Even if they are not laid off, they may see their work schedules and salaries reduced. Many companies are using temporary schedule and salary reductions to cut costs until business conditions improve. The key for affected employees is to know the guidelines for such reductions.

First and foremost is the question of whether affected employees have exempt or non-exempt status. Under California law, all employees are considered to be non-exempt, meaning that they are entitled to overtime pay. The only exception is for those employees that meet all the requirements of an applicable exemption, most commonly the executive, administrative, or professional exemptions. To qualify for these exemptions an employee must pass the salary test and duties test. The salary test requires an employee to earn a monthly salary that is no less than two times the minimum wage for full-time employment. The duties test requires an employee to be primarily engaged in managerial responsibilities.

With respect to non-exempt employees, it has long been established that an employer may temporarily reduce their workers’ schedules and wages. The issue is a bit more complicated for exempt employees. According to the California Department of Labor Standards Enforcement (DLSE), theLabor Code and Industrial Welfare Commission wage order provisions nor federal law prohibits an employer from reducing the work schedules and salaries of exempt employees. Therefore, absent an employment contract or other agreement that states otherwise, an employer can reduce an exempt employee’s salary as long as they continue to earn more than twice the minimum wage and engage in exempt job duties.

One restriction is that the salary reduction cannot be linked to any corresponding change in days and hours worked. For example, an employer could not reduce an employee’s salary by 15% in exchange for giving them Fridays off. According to the California Department of Labor Standards Enforcement (DLSE), this type of salary reduction structure would violate the salary test and destroy the employee’s exempt status and non-exempt labor requirements such as meal and rest breaks would apply. The rationale is that exempt employees are paid for their work product regardless of the amount of time they take to complete their duties. Tying work hours to earnings is not in accord with being a salaried employee. 

Another consideration is that the salary reduction should also apply to all exempt employees or at least everyone with the same job duties. Applying a reduction to only certain exempt employees could violate anti-discrimination laws.

If your employer is attempting to reduce your work hours or salary, contact an experienced California labor law attorney. An attorney can advise you of your rights and evaluate your specific employment situation.
 

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