I am currently a night time phone operator for an answering service. My shifts are 11p-9:30a with a 30 minute break from 7a-7:30a. I work alone until 7a so that 30 minute break is my only time where I walk away and not still be obligated to perform my duties. My days on and off are Sunday night through Weds. night, off thurs/fri nights, and back on sat. night through thurs night, off fri/sat nights. (essentially its 4 on, 2 off, 6 on, 2 off)

I do not have any managerial duties and am considered a regular employee. They have me on a 'salaried' pay that break down to roughly $20.17 an hour. Before being put onto salary I was working 11p-7a for roughly $16 an hour. I was put on to salary because I had requested more hours. So instead of paying me the one and one-half overtime pay for the additional 12.5 hrs a week, they put me on salary at a rate which was above my hourly rate but not equal to the 1.5 overtime pay i would have received. (keep in mind I have received annual increases since becoming 'salaried' so the $4.17 was not an initial pay increase for being put on salary)

Am I entitled to any kind of over time pay at all? They sometimes require me to work an extra day (to cover vacations for the other night shift worker) or a few hours with out compensation. I have never singed any formal agreement in writing and have also been denied the ability to cash in my 'use them or lose them' vacation and sick days like other employees are able to do.

Sorry if this is confusing to read and understand. I appreciate any and all answers/responses.

"Salaried" is merely a method of payment. You should be getting overtime for all hours worked per the description in this link, since your duties do not qualify you for exempt status.
http://www.dir.ca.gov/dlse/FAQ_Overtime.htm

Regarding your vacation and sick time, the employer is not required to let you "cash in" that time.

You didn't mention anything about getting rest breaks. Although rest breaks are generally required by law for nonexempt employees, there are exceptions if you are the only person on duty. But additional compensation is generally required. See the second half of the second paragraph here.
http://www.dir.ca.gov/dlse/FAQ_RestPeriods.htm

If you don't feel comfortable addressing these situations with your manager or Human Resources, you can file a claim for unpaid wages, including unpaid overtime, and the failure to provide rest breaks (without the additional compensation required) with the Division of Labor Standards Enforcement.
http://www.dir.ca.gov/dlse/HowToFileWageClaim.htm

In California from:
http://www.dir.ca.gov/dlse/FAQ_Vacation.htm

.


My employer's vacation policy provides that if I do not use all of my annual vacation entitlement by the end of the year, that I lose the unused balance. Is this legal?



No, such a provision is not legal. In California, vacation pay is another form of wages which vests as it is earned (in this context, "vests" means you are invested or endowed with rights in the wages). Accordingly, a policy that provides for the forfeiture of vacation pay that is not used by a specified date ("use it or lose it") is an illegal policy under California law and will not be recognized by the Labor Commissioner.

Thanks, worriedspouse, I missed that part of the post.

Firstly thank you for the replies and VERY helpful information!

I guess I do not fully understand the term of 'salary pay'. My understanding was that salary pay is a flat rate of pay each month for a set amount of hours worked, and if need be they can call upon you to work additional hours and not be obligated to pay you any extra. But in order for this to happen there has to be a written and signed agreement between employer and employee, which has never happened. I have brought this issue up with my manager previously and they say that I have a collective bargaining agreement with them even though no such paperwork or agreement has ever been read of signed by myself (I believe that's the term she used). This was in regards to my vacation time expiring with out being able to carry it over into new calender year or cash it in at the end of the year. After I brought this issue up with them they decided to, according to them, make an exception and allow me to roll it over into the new year but refused to let me cash in instead.

As for breaks my work period goes as such. Work starts at 11:00p.m. I work alone from 11:00pm until 7:00am at which time two more operators come on duty and I am allowed to take a 30 minute break, which if I'm not mistaken is required by law for a 8 hour work period and is paid? I then return to work from 7:30am to 9:30am and conclude my shift. At no time during my 10.5 hour shift other than the 30 minutes from 7:00am to 7:30am am I allowed to take an uninterrupted break of any kind what so ever.

They are however an 'at will' employer according to the employment agreement and thus in a sense bullies me into silence. To my understanding this means that at any time, with out reason or cause, they can terminate my employment and not provide any compensation for doing so. I do not wish to get fired for fighting them or get my hours/pay reduced due to this. I know there are laws protecting such actions taken upon a whistle blowing employee, but rarely do the laws actually protect those to whom they are designed for.:eek:

One last thing is I have been looking into a second job to boost my monthly income during some financial difficulties. I spoke to my employer to see if they were willing to work with me and they seemingly gave me the cold shoulder. The owners said that if I were to get a second job they would move me to the day shift, provide me with only 36 hours instead of 52.5 per week, and cut my pay from $20.17 to roughly $15.00. Is it legal for them to discriminate and limit my ability to get a second job as long as my job performance does not deviate or decline from its current performance?

Thanks again and sorry for being so long!

You are confusing "salaried" with "exempt" which many people do.

If exempt, with limited exceptions, you must be guaranteed a fixed weekly salary that cannot be reduced for "quality or quantity of work" and are expected to work whatever hours are necessary to get the job done without the legal expectation of any additional compensation.

Nonexempt CAN be paid a salary and that salary must be intended to cover a fixed number or hours. However, again, except for the FWW pay method or a Belo-type plan, neither of which appear to apply here, nonexempt employees STILL must be paid overtime when they work over 40 hours in a workweek. Paying on a salaried basis does not make that requirement go away.

Regarding your rest breaks, did you read the next to last paragraph in the link I provided? If you are not provided with the required rest breaks, the employer must pay a penalty of one hour's wages per day that the breaks are not provided.

California law does not specify when during the work day meal periods must be provided, only that one IS provided. However, please also note the following (which I'm not sure applies in your case or not)
If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period. Bono Enterprises, In. v. Bradshaw (1995) 32 Cal.App.4th 968.

http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm

Your "agreement" cannot circumvent the law. Any provisions in it which do so would not be enforceable.

Also, California has whistleblower protection. That means you may have legal recourse via a civil suit if you are fired or otherwise retaliated against for reporting a violation of law to the proper regulatory agency.

The employer does not have to allow you to work extra hours and it is not illegal discrimination for them to provide a different set of working conditions if they do. Whether you choose to accept the extra hours under the revised working conditions is your choice.