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Ca No Break No lunch No OT ???

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  • Ca No Break No lunch No OT ???

    I have worked at a place for the last 5 years and was recently terminated. After I did a little research I see that I am due an hours pay for both every lunch and every break I did not receive over the last 3 years, is this 100% accurate ? I never signed a contract that stated I would get paid meal breaks or breaks. I was a manager but I did not make twice the states minimum wage, and a lot of my duties are the same as other employees. Also was never paid for any overtime. Many times out of the month I worked over 8 hours. Some of the employees there worked doubles.

    My other question is, if this is all true should I just file with the labor commision or contact my former employer and ask for more money in exchange for me not fileing a case and signing a letter of confidentiality, IE I wont tell any of the other employees that they too could file for this. They have roughly 20 employees that have been there for the past 3 years, thats a lot of money. I dont want it to look like I am trying to extort them.

    Thanks in advance for your answers and knowledge.
    Last edited by JoeBatters74; 12-28-2005, 04:36 PM. Reason: To add about OT

  • #2
    TTT for a little help.

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    • #3
      Filled for timecard records

      I have filled for my hours for the last 3 years I worked. I have read that they have 21 days to provide those to me. Is that 21 working days or 21 actual days ? Then if i do not get them in 21 days, is there actually a $750 penalty ? And if so do I file a wage claim for that ? or is there another procedding ?

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      • #4
        Did the DLSE take your claim?
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          They took my first claim for not getting paid when I was fired. I have a hearing scheduled for that. I still have not received my last 3 years time worked, so I cant file until I have that. I believe, If I can file without the record of hours let me know.

          Thanks much

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          • #6
            I have filled for my hours for the last 3 years I worked. I have read that they have 21 days to provide those to me. Is that 21 working days or 21 actual days ? Then if i do not get them in 21 days, is there actually a $750 penalty ? And if so do I file a wage claim for that ? or is there another procedding ?


            I see were I messed up. I asked my employer for the hours I worked. I have not filed with the Labor Commision yet.

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            • #7
              Hello ...I too live in Ca. I have gone throught the wage claim process with the DLSE. The answer to you questions of time records is that the employer does not have to actually give you the time records.However they are legally obligated to permit you to examine the records within a reasonable time frame for a reasonable amount of time.Most employers will not comply with this if they are violating the law.

              What you can do is file an estimated wage claim based on the facts. The DLSE will schedule an informal conference before they decide if the matter should actually go to a hearing.This is your time to present the facts . Remember you have the burden of proof.When the DLSE sets the matter for a conference they will require the employer to bring the records with them.Sometimes the employer can pay the amount of wages in full and the matter will be cancelled. Dont cheat yourself or the employer get your estimate as close as possible . In some cases the DLSE will obtain the time records and give them to the employee.

              The first thing you must do is actually ask for yor wages.Then proceed with the DLSE if the employer will not comply.

              You are entitled to one hour of regular payas a penalty for every meal and rest period not received. Also the unpaid overtime. You can go back for three years. Sometimes this adds up to a substantial amount of money.

              The DLSE may impose fines on the employer if the deem necessary. They are pretty fair to both parties and are experts when it comes to someone not being honest.They see these matters every day.

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              • #8
                I found the Labor code. It is 226.c and 226.f . I think these fall into what i was looking for. I swear by the time this is all said and done, I should be an aid or attorney, I have read the labor cade it seems a couple of times trying to educate myself, at least the sections that pertain to me. According to these, if I dont get my records in 21 calender days they are in violation. I know they will not have it available for me. So how do I go about the claim for that ? The same as the others ?

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                • #9
                  Yes, you file a complaint with the DLSE. They are the enforcement agency for California wage and hour regulations, including the failure to provide breaks and meal periods.
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                  • #10
                    Bring the violation of labor code 226 c and f to the attention of the deputy labor commisioner when you attend your conference. In the mean time I would just file an estimated wage claim for the loss of wages / meal and rest period penalties.Then your conference will be scheduled. The deputy labor commissioner will determine if they are in violation and may or may not penalize them.

                    You also may be entitled to waiting time penalties. How this works is when an employee request from an employer or former employer wages that are legitimately due. And the employer refuses to pay then the employee can recover wage per day times 8 hours . Not to exceed 30 days. For every day the employer failed to pay the employee. You can also discuss this at your conference.

                    Most of the time employers will not comply with applicable laws. This is no surprise to the DLSE. They see this all the time.

                    I suggest you file for an estimate of actual wages. Explain why your claim is estimated . Then ask the Labor Commissioner if LC 226 C and F apply. Also if waiting time penalties apply. Dont claim the penalties let the Labor Commissioner apply the law if the see necessary.

                    Sometimes an employer will just pay the wage claim and elect not to appear. Then the DLSE will mail your check to you that they recovered from the employer. It is only if you go to a hearing will the Labor Commissioner apply penalties.

                    It is good to be educated on the basics of labor law. No One can pull the wool over your eyes when you know better. I have personally fought several labor board claims and have prevailed on them all.

                    Check out labor code section 432. You have the right to inspect all materials in your personell file as well.

                    Hope this info helps you.

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                    • #11
                      Thank you both very much. I am looking into a new job went there the past 2 days to see how things go, and the first thing I noticed was no breaks no meal time. You look at jobs differently after going through this.

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                      • #12
                        Re: Cal Statute of Limitations

                        Dear Joe,

                        I've attached a PDF file containing a California Court of Appeal - Fourth District ruling dated January 20, 2006. This decision primarily states that the statute of limitations on issues related to denial of meal or rest breaks is 3 years, insomuch as they've ruled that it is a wage rather than a penalty. You may already know that if it were a penalty (rather than a wage), you can only sue back 1 year. I hope this is of assistance.

                        PS:....the PDF file was too large to Attach, so I Zipped it. Just unzip it and view via your Acrobat Reader.

                        Good Luck,
                        Marlin
                        Attached Files

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                        • #13
                          Marlin, great job on posting that. We have been waiting for this one for a while. A previous decision had come up with the 1 year limitation.

                          I will just clairify one point. The court in this case determined that meal and rest violations were a wage due immediately. As such, they are covered under a theory of restitution -- that is, getting something that you were owed. This allows you to sue under an unfair business practice law which has a statute of limitations of 4 years. The DLSE can not enforce this additional 4th year. Thus, if you have violations that go back more than 3 years, you are better off suing in court so you can get the fourth year.
                          Michael Tracy
                          Attorney
                          http://www.laborlawradio.com

                          Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

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                          • #14
                            I do have a fourth year that I was not paid for. Would the cost of an attorney be prohibitive ? Or would they have to cover attorney's fee's ?

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                            • #15
                              My understanding is that you can bypass the DLSE and file in small claims court. Depending on the value of your case. Weather small claims or another court.

                              Attorneys have different fees. Some may take it on a contingency others may want fees paid up front.

                              I am not exactly sure but I believe if you prevail in a civil hearing the defense/ employer could be held liable for your attorneys fees.

                              This would be a good question for the California labor law attorney M Tracy who offen post messages on this forum.

                              I actually only ended up in superior court once for a labor law matter after the employer appealed a decision from the DLSE.

                              If you have a really good case you may find an attorney in your area willing to provide services.

                              Comment

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