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California Overtime California

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  • California Overtime California

    I recently started a new job in California.

    I am salaried and was told (verbally, not in writing, not part of job offer)that I'm salaried at 50hrs/week, and that some weeks we would work more, some weeks we would work less and it would even out. My paychecks states I'm working/being paid for 40 hours a week and the company is reporting my hours to our insurance at 40 hours / week. We're paid bi-monthly, so actually, my pay stays the same but some checks are for more/less hours (how to establish hourly pay then? salary/2080 hours?). I'm consistently working 50+ hours with no overtime compensation or make up time - and it's become clear that we're salaried for a reason because they can't/don't want to afford the real cost of my position and most people (maybe even my boss) don't realize this is illegal.

    I also am questioning my commute time, because I was told I would be working out of one work location and advised to live in a certain area to be closest. This location is about 35miles/40mins away. I was told I would not be in our office regularly, if ever, which is 70 miles/1.5-3 hrs commute, however, I have been required to be there several times. We now have an alternate work site that I'm at nearly 100% of the time, which is an hour away and happens to be a rather remote location where it would not be possible to live closer. I am required to drive a company vehicle and I do have to carry items in this specifically for work everyday, or in some sense to be called to respond to a situation.

    I've done a fair amount of research online and I'm pretty certain I'm a non-exempt employee. Most of our employees are hourly and are compensated for commute time (from their home to work-site). Any advice/suggestions? I'm aware of filing a claim and the procedure, I guess I'm just looking for more clarification that I am indeed entitled to the overtime. I do submit a time sheet everyday to my boss, so s/he is aware that I'm putting in ~10+ hrs a day and quite a total at the end of the week.
    Last edited by blueeclipsegt; 03-20-2011, 09:18 PM.

  • #2
    Easy issue first. If you really are non-exempt, file a wage claim with CA-DLSE for the unpaid time. If they agree with you, that one if a slam dunk.

    Hard issue next. Commute are not hours worked, thanks to a federal law called the Portal-to-Portal Act. Getting drive time paid is generally a function of convincing the government that the travel time is unrelated to commuting. I can give you a very long answer on this, but you will not like the answer. The chances of these being treated as hours worked are not could.

    Federal travel time rules are 29 CFR 785.33-785.41

    CA travel rules can be found in chapter 46 of the CA-DLSE manual.

    Hourly and salaried are just payment methods and legally have next to nothing to do with the Exempt status. Many hourly employees are Exempt, and many salaried employees are non-exempt.

    You can try making some kind of argument about the employer not following their policies, since they apparently are paying for some commutes and not others. Might work, might not work, especially since there is no apparent externally imposed legal obligation on the employer to do so. Still, judges and ALJ sometimes get notions.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)


    • #3
      Does the employers intention matter? For example, it's become apparent that they never intended me to only work 40 hours/wk and our standard work day is 10-12+ hours.

      It might be hard to prove, but it's also apparent they paying us 'salary' to avoid overtime.


      • #4
        Originally posted by DAW View Post
        Easy issue first. If you really are non-exempt, file a wage claim with CA-DLSE for the unpaid time. If they agree with you, that one if a slam dunk.
        Can you perhaps help with my exempt status?

        I work in the Construction industry, and I essentially monitor environmental compliance. I do have a MS degree, but this is basically my first job out of school and there is nothing that my education has specifically prepared me for with this position, just perhaps critical thinking and other skills anyone with college degree should have. Others in the job position don't have MS either. I have no prior experience in my position, so everything is new and I'm learning along the way. I technically have authority to stop work, etc., but it's based on rules/guidelines, which quite frankly a high school graduate could understand. Most of the time I'm just picking up garbage.

        They've never specifically told me that I'm exempt/non-exempt.


        • #5
          Based on what you have said, my best guess is that you are non-exempt. Of course there is no one in the government who cares what I think. At the end of the day, the only opinion that matters belongs to CA-DLSE.

          Paying you a "salary" in no way avoids overtime.

          It legally does not matter how many hours the employer "intends" you work. It is legally in CA (and in all other states) for the employer to make you work a huge number of hours. The only question is whether or not you are non-exempt. The employers "intent" does not matter. The "salary" does not matter. Just the exempt status.

          File a wage claim with CA-DLSE. It works or it does not.

          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)


          • #6
            More questions....

            I've got two more questions regarding my situation, perhaps I'm over thinking the whole ordeal.

            1) Our bi-monthly paychecks, as I just realized, don't even take into account the fact that some pay periods actually result in more hours than others. I'm not sure if this matters, but depending on how it's divided up, some periods I'm 'being paid' for less than 40 hrs a week, and others, I'm being paid for more than 40 hrs a week. They just took 2080/24. How might that factor in? I'm even more confused now....

            2) I'm not sure if my boss knows what s/he's doing (as far as uncompensated overtime), but now we're being told "blah blah blah...make sure you're working up to 40 hours, if not, then we'll make some stuff up for you to do...but if you're working over, let me know when you want to take some time off later for that..." Is this in any way establishing an agreement to take compensation time later for overtime? First, we're not really agreeing to it. I guess you could say it's 'forced' upon us, perhaps in lieu of overtime pay. Second, they really don't give you time off later, at least they haven't so far. Third, they sure aren't compensated us for x1.5 for each hour of overtime.

            Although I realize the best thing to do if the job is that bad, is to find a new one and move on, and that is a possibility eventually. But, in the mean time, I am having a hard time sorting through this mess where I feel taken advantage of.


            • #7
              1. That would be semi-monthly, not bi-monthly, I'm sure. Twice a month, correct? Now, if you were salaried exempt, what you are describing would not be a problem, and it appears that is what how the employer has classified you. Your exempt (or nonexempt, with which I agree) status is the key here. Many, many payroll systems show 40 hours as a default for salaried exempt employees which, in the grand scheme of things, is not an issue. However, nonexempt employees must be paid for all hours worked, and overtime when applicable. Until you get that straightened out, you can't really resolve the pay issue. Are you paid current (for example, on the 15th of end-of-month for the pay periods ending the 15th and EOM) or are you paid in arrears (for the pay periods, you're paid sometime after the end of the pay period)?

              2. Comp time is allowed under certain circumstances under CA law, but you must agree to it. Note that this is not allowed under federal law for private employers, but it is in CA. CLC Section 204.3
              (b) An employer may provide compensating time off under
              subdivision (a) if the following four conditions are met:
              (1) The compensating time off is provided pursuant to applicable
              provisions of a collective bargaining agreement, memorandum of
              understanding, or other written agreement between the employer and
              the duly authorized representative of the employer's employees; or,
              in the case of employees not covered by the aforementioned agreement
              or memorandum of understanding, pursuant to a written agreement
              entered into between the employer and employee before the performance
              of the work.
              (2) The employee has not accrued compensating time in excess of
              the limit prescribed by subdivision (c).
              (3) The employee has requested, in writing, compensating time off
              in lieu of overtime compensation.
              (4) The employee is regularly scheduled to work no less than 40
              hours in a workweek.
              (c) (1) An employee may not accrue more than 240 hours of
              compensating time off. Any employee who has accrued 240 hours of
              compensating time off shall, for any additional overtime hours of
              work, be paid overtime compensation.
              Last edited by Pattymd; 03-26-2011, 03:30 AM.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


              • #8
                Thanks again for the response. And I am paid semi-monthly, sorry about that. We're paid on 15th and last weekday of month (usually 30,31). So for March, my paycheck on the 15th is for 3/1-3/15. I found it odd that we're paid on the 15th for that day, but it is what it is. For that pay period, there theoretically was 11 'workdays', assuming M-F normal work week. That works out to being paid 7.87hr each work day. For the previous pay period, February 16-28, there were 9 workdays, and it would equal to 9.63hrs per day.

                Again, I'm not sure if this matters and I understand that I really need to clarify my exempt status. It just seems apparent to me that my company is a cluster**** that doesn't really know what they're doing. Or they do, and they're just taking advantage as long as they can.

                Couple more questions:

                1) I've read about this '30 day rule' in CA, that if I dispute pay owed to me, they continue paying me for up to 30 days after quit/fired. Would this potentially apply to me and accrued overtime?

                2) What happens if/when I accumulate more than 240 unpaid overtime hours? Without bringing this whole issue to a head and pressing for payment for the overtime, is there anything that would work against me to continue to stay quiet about this and keep logging/accumulating hours?

                3) What about the fees the company could be liable for? I thought I read somewhere $50 for each instance of not compensating over time. How does that work? Any links that could explain some of this more?
                Last edited by blueeclipsegt; 03-26-2011, 09:56 AM.


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