Employment Law Issues
Overtime Compensation Rules
Generally, unless exempt, if an employee works more than 8 hours in one day or 40 hours in one week, the employee is entitled to overtime compensation. According to U.S. Department of Labor (DOL), “An employer who requires or permits an employee to work overtime (OT) is generally required to pay the employee premium pay for such overtime work.”
The DOL states that: “The overtime requirement may not be waived by agreement between the employer and employees. An agreement that only 8 hours a day or only 40 hours a week will be counted as working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, also will not impair the employee’s right to compensation for compensable overtime hours that are worked.”
The overtime rules apply whether the employer pays the employee an hourly wage or a salary. Employees may be entitled to overtime compensation even if they receive a salary. An employee paid on a salary basis must receive a monthly salary of at least two (2) times the state minimum wage, regardless of the number of hours worked. This means that the employee\'s pay will not be reduced due to variations in the quality or quantity of her work, nor will it be reduced because of partial-day absences from work (though deductions for missing whole days are generally permissible). If your employer docks your pay for partial-day absences, you may be eligible for overtime pay. Even if paid on a salary basis, the employer has the burden of proving that the employee is not entitled to overtime compensation.
California law requires employers to reimburse employees for expenses incurred to do their job. These expenses include, but are not limited to, mileage reimbursement for miles driven, costs associated with the purchase of tools and/or uniforms and telephone bills for calls made while performing the job.
California law also provides that any agreement to waive a right to reimbursement for expenses incurred on the employee’s behalf is void and unenforceable.
If an employer requires employees to wear a uniform, the employer must pay for both the purchase and maintenance of the uniform. The employer must reimburse the employee for maintenance of the uniform if the employee must either iron or dry clean the uniform.
California law requires employers to provide employees with a 30-minute, duty-free, meal period if an employee works more than 5 hours. If the employee works 6 hours or less, the meal period may be waived by mutual agreement between the employer and employee. If an employee works more than 10 hours, the employee is entitled to another 30-minute, duty-free, meal period. While an employee may agree to waive the right to an off-duty meal period once in a given day, the circumstances in which the waiver may occur are very strict.Employers also must provide employees with 10 minute rest breaks for every 3.5 hours worked.
If an employer fails to provide employees the required rest and meal periods, the employer must pay the employee an extra hour of compensation.
Given the importance of wages, there are several rules with which employers must comply. If an employer terminates an employee, all wages owed are due immediately on termination: meaning the day of termination. If an employee decides to leave the employment, the employer must pay all wages due within 72 hours of the date of termination.
When an employer pays wages, the method of payment must be in a manner that allows the employee to access all of the wages. While payment may be either by check or direct deposit, the employer cannot mandate a particular method of payment. It is the employee who makes the choice regarding method of payment. If the employer pays wages by check, the name of the bank, together with the address, must appear on the face of the check. The bank listed must be a bank with a location in California. The employee must be able to cash the check without charge.
Recently, employers have begun to request that employees receive their pay through a paycard. While these types of cards may be permissible, again, the employee must be able to access all of the employee\'s wages without charge. Other requirements apply to this type of payment of wages. The employer must comply with all of the stated requirements.
Employers may only deduct certain, specified, amounts, such as taxes or insurance, from wages. The employee must agree to these deductions in writing. An employer cannot make unauthorized deductions from wages. Unlawful deductions could include deductions for damage to equipment, uniforms, etc.
One employer practice that gives rise to additinal compensation owed by employers to employees, particularly in the retail context, is the practice of requiring employees to submit to bag searches whenever they leave the stores. Depending on the circumstances, employers could owe employees compensation for both the time waiting to be searched and for the time it takes to conduct the actual search.