Oakland Unpaid Wage and Hour Attorneys

Oakland Wage and Hour Attorneys Recover Unpaid Wages on Behalf of Workers

An employment contract is a legally enforceable agreement between the employer and an employee. By hiring employees, a company implicitly agrees to comply with certain state and federal employment laws. If an employer fails to follow the requirements of these laws – even unintentionally – they can be held responsible.

You work too hard for your money to leave any of it on the table. You deserve every penny you earned while at work, and when an employer refuses to fairly compensate an employee for their hours or commissions, the employer may be in violation of the Fair Labor Standards Act (FLSA). At the Erlich Law Firm, Bay Area employment lawyer, Jason Erlich, aggressively pursues claims of wage and hour violations under the FLSA. Attorney Erlich has over 20 years of experience representing employees who have been wronged by their employers, and has a track record of success across all areas of California employment law.

Statistics Section:

In California Non-exempt worker wages:
• More than eight hours a day: 1.5x an employee’s normal hourly rate
• More than 40 hours in a week: 1.5x an employee’s normal hourly rate
• More than 12 hours in a day: 2x an employee’s normal hourly rate
• More than eight hours a day, if working seven or more consecutive days: 2x an employee’s normal hourly rate

This is more favorable to employees that federal law, which only requires all hours over 40 per week be compensated at 1.5x regular pay.

58.3 percent of all workers are paid an hourly wage. This amounts to over 80 million employees.

In 2017, of the 80 million hourly workers, about 550,000 earned the minimum wage. 1.3 million employees were paid less than the minimum wage.

An employer must generally pay the highest minimum wage under federal, state or local laws. Currently, the minimum wage in California is $12.00 per hour if the employer has fewer than 25 employees and $13.00 per hour is the employer has 26 or more employees. This is more than 50 percent higher than the federal minimum wage, which is currently $7.25. Certain cities in
California require a higher minimum wage, such as:

• San Francisco – $15.59 per hour
• Oakland – $14.14 per hour
• Berkeley – $15.59 per hour (going up to $16.07 per hour on July 1, 2020)
• San Jose – $15.25 per hour
• Fremont – $15.00 per hour
• Palo Alto – $15.00 per hour

Unlike under federal law, restaurant servers are entitled to the same minimum pay as all other employees, which is currently either $12.00 or the minimum wage of the city where the restaurant is located. Food-service employers cannot count tips towards a worker’s minimum wage.

According to recent statistics, fewer than seven percent of hourly employees are eligible to receive overtime pay.

The Wage and Hour Division of the United States Department of Labor is responsible for enforcing violations of the FLSA.

The Fair Labor Standards Act and California State Laws Protect Workers from Employment Abuses

The Fair Labor Standards (FLSA) Act is a federal law imposing strict requirements on employers. The FLSA covers various aspects of employment, including:
• Establishing a minimum wage
• Determining overtime pay eligibility
• Outlining recordkeeping requirements
• Establishing child labor laws

The FLSA covers public and private employers, regardless of size, and the protections of the FLSA extend to both full-time and part-time workers. While the FLSA establishes the lower threshold employees’ rights, states are free to enact more protective laws.

In many situations, California’s employment laws are more favorable to workers than the corresponding federal laws. For example, the federal minimum wage is just $7.25 per hour; whereas the California minimum wage is currently set at either $12.00 or $13.00 per hour, depending on the size of the company. In addition, many California cities have passed local ordinances mandating an even higher minimum wage. Some of these cities tie the minimum wage to the Consumer Price Index (CPI), ensuring that the minimum wage rises each year along with inflation. For example, in 2021, the minimum wage in for employees in the City of Berkeley will increase from $16.07 to $16.07 plus a CPI adjustment, which may be an additional few percent.

Of course, not all employees are eligible for overtime pay. As a general matter, an employee must meet the following criteria to be eligible:
• Be over the age of 18, or
• Be over the age of 16 and have permission to leave school for work; and
• Be employed in a non-executive, non-administrative, non-professional position.

Employees who work in executive, administrative or professional jobs are considered to be exempt from the California Labor Code overtime laws. Thus, to avoid paying employees expensive overtime wages, many California employers intentionally mischaracterize employees as exempt when they should be non-exempt. This results in the employee not being paid overtime wages when. Below is a brief discussion of each of the exempt classifications:

Executives: Courts use a two-part test when determining if an employee is an “executive.” The term executive is a little misleading, it does not mean only CEO’s or high-level executives. It can mean any manager or person who manages two or more full time employees in the company. Executives who are paid an hourly wage are automatically considered non-exempt. If a salary is tied in any way to the number of hours worked, the employee will be considered an hourly employee, and thus, non-exempt. Even if an employee receives a salary, they are still considered exempt unless the salary paid to the employee is equal to twice the state’s minimum wage.

In addition to the salary test, courts look to the job-duties test. To be considered exempt, an employee’s position must require they be primarily engaged in:
• Managing a business or one of the business’s major departments or subdivisions;
• Regularly directing the work of others;
• Exercising the ability to hire or fire workers, or at least have a say in that decision; and
• Customarily use their discretion in how to carry out the duties of their job.

California courts are keenly aware of the abuses many employees routinely suffer, and interpret any vague labor law in favor of the employee.

Administrative Workers: California courts apply a two-part test to determine if an employee is exempt under the administrative worker exemption. First, only salaried employees can be exempt. Thus, if an employee receives hourly pay, they are automatically considered non-exempt and are entitled to overtime pay. However, even if an administrative employee is paid a salary, they will still be considered exempt unless that salary is equivalent to twice the state’s minimum wage.

Court will also look to the job duties test when determining whether an employee is exempt under the administrative exemption. The job duties test considers the actual duties performed, rather than what is set forth in the employer’s job description. Typically, an administrative employee is one who:
• Performs office or non-manual work directly relating to the employer’s management policies or general business operations; and
• Customarily and regularly using discretion and independent judgment in performing the job
In addition, to be considered administrative, an employee must be primarily engaged in one of the following:
• Directly assisting an owner or an employee who is employed in an executive or administrative capacity
• Performing specialized or technical work under general supervision requiring special training, experience, or knowledge; or
• Executing special assignments under general supervision.

Exempt administrative employees are typically “white collar” workers who, for example, may advise business executives, conduct market research, or negotiate on behalf of the company.

Professional Workers: Like executives and administrative workers, professional workers can only be characterized as such if they meet both the salary and job duties tests. Only salaried employees can be exempt. Thus, if an employee receives hourly pay, they are automatically considered non-exempt and are entitled to overtime pay. However, even if a professional employee is paid a salary, they will still be considered exempt unless that salary is equivalent to twice the state’s minimum wage.
California has adopted two alternate duties tests to determine whether an employee should be considered a professional employee:
• Recognized professions
• Learned or artistic professions

Recognized professions are those who are commonly thought of as professionals in everyday society. For example, the employees who primarily work in the following areas, and are able to exercise their own judgment and discretion, will be recognized as professionals:
• Medicine
• Law
• Optometry
• Dentistry
• Engineering
• Architecture
• Accounting
• Teaching

Just because someone works in one of these fields does not necessarily mean that they will be considered an exempt professional employee. A professional education is not sufficient, and each position listed above has additional requirements that must be met before an employee will be considered exempt.

Common California Workplace Violations:

Businesses exist to make money, and minimizing expenses is a major part running a business. For many businesses, labor is their most significant expense. Thus, employers routinely try to skirt the law when it comes to paying employees what they deserve. Below are a few of the more common wage and hour violations:

• Misclassification of exempt employee: By mischaracterizing a non-exempt employee as an exempt employee, a business avoids paying overtime wages to that employee. Sometimes, employers innocently misclassify an employee, however, even in that situation the employee is still entitled to their back wages.

• Misclassification of independent contractor: The use of independent contractors has grown significantly over recent years. Independent contractors are not considered employees, and lack many of the protections employees enjoy. Thus, business may intentionally – or unintentionally – misclassify an employee as an independent contractor to avoid providing benefits or overtime pay.

• Requiring work while off the clock: Employers cannot get around overtime wage requirements by asking employees to clock out to perform certain tasks. If an employee is performing any task at the request of their employer, they should be fairly compensated, even if it means the payment of overtime wages.

• Improperly calculated pay: Occasionally, employers will inadvertently miscalculate an employee’s pay. When this occurs, an employee is entitled to receive their back wages immediately. Employers who try to “make a deal” with employees to pay them back over time, or refuse to compensate them for back wages are violating state and federal employment laws.

• Improper deductions: Businesses can only legally make certain deductions from an employee’s pay for missed work time. However, employer’s routinely overreach when making deductions.

• Illegal tipping: Employers are not permitted to keep any of an employee’s tips, and cannot use an employ’s tips as a credit against their hourly wage. While tip pooling is generally allowed under California law, there are certain rules that must be followed to make the practice permissible.

• Minimum wage violations: All California employees must be paid an hour wage at or above the highest of the federal, state or local minimum wage. Despite this requirement, employers routinely pay employees less than minimum wage.

• Failure to pay deserved overtime: Businesses may try to avoid paying overtime wages in several ways, including misclassifying employees and miscalculating hours. However, California employers have a duty to maintain accurate and detailed records for all employees, and must be able to justify classifying an employee as exempt.

Class Action Lawsuits:

When an employee discovers that they were wronged by their employer, chances are they were not the only one. Often, employers who engage in illegal employment practices do so across the board to all employees. In these situations, employees can band together to bring a class action lawsuit against the employer.

Class action lawsuits offer many benefits, including:
• Allowing smaller dollar-amount feasible;
• Sharing the cost of litigation; and
• Increased bargaining power

Class action lawsuits are often very high-stakes, and employers take them very seriously. As a result, these cases can be exceptionally complex and should be handled by an experienced California employment attorney.

The Time to File a California Wage and Hour Claim:

All lawsuits must be brought within a specified amount of time, as outlined in the relevant statute of limitations. For most claims brought under the Fair Labor Standards Act, wronged employees must initiate a claim within two years of a violation. One notable exception is if the employer’s conduct was willful, in such case the statute of limitations is three years.
For claims brought under California law, the statute of limitations is slightly more generous. For example, most claims must be brought within three years, and do not require a showing that an employer’s actions were willful.

Consult with a Knowledgeable Bay Area Employment Lawyer

If you have recently been denied your hard-earned wages, contact the Erlich Law Firm for immediate assistance. As experienced Oakland employment law attorneys, we have a keen understanding of the legal principles involved in employers’ decisions, and we help employees and independent contractors who have been wronged by their employers. We handle all types of California employment law claims, including overtime pay disputes, misclassifications of independent contractors, and minimum-wage violations. We also handle California employment discrimination cases, FMLA violations, and wrongful terminations. To learn more, and to schedule a free consultation to speak with an attorney about your situation, call (510) 390-9140.

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Client testimonials

Jason took the time to explain and guide me through the challenging process, and went the extra steps in consistently providing guidance and putting my concerns and questions high on their list.

Jeff V., Oakland