Lazear Mack | Attorneys at Law

Employers often take advantage of employees by shaving their paychecks – for example, improperly calling employees “exempt from overtime,” depriving them of earned overtime compensation by making them work off-the-clock, failing to pay them proper commissions, and failing to reimburse them for expenditures they have made on behalf of the employer. Though usually these incidents are small each time they occur, they add up to major wage theft over time – your money and that of your co-workers, being used to inflate your employer’s bank account. You do not have to tolerate it. Also, if you have had your wages stolen, your employer may owe you interest, penalties and liquidated damages – so the amount you can recover is potentially much greater than what you lost in the first place.

Most employees in the workforce nationwide are entitled to be paid 1.5 times their regular rate of pay for all hours they work over 40 in a week. In California, most employees are entitled to time-and-a-half for each hour over 8 in a day – and double-time for hours over 12 in a day (or over 8 on the seventh consecutive day of work). There are certain narrow exceptions to these rules – but employers often try to make a square peg fit in a proverbial round hole, saying that an employee falls under one of these limited exemptions and is not entitled to overtime, when in fact, he or she should be getting paid extra wages.

It is important for employees to know, you cannot be denied overtime if your employer deducts any portion of your wages when you miss part of a day’s work. This is called the “salary basis” test – that is, to be potentially exempt from the overtime requirement, you must be paid a true salary and receive the same base pay regardless of how many hours you work in a particular week. Currently the minimum salary must be $23,600 per year ($455 per week) in order to be exempt from overtime requirements. There is a new rule from the Department of Labor that may increase that minimum salary, but it is currently subject to a deferment in Federal Court, so ask an attorney about what your base should be as of the time you contact them. Also, your duties must be of an exempt nature. True executives, professionals, and administrative employees are generally exempt from overtime. However, it is important to note that your actual job duties (not your position title) determine whether or not one of these exemptions applies to you and your similarly-situated co-workers.  In California, you must perform these administrative duties at least 51% of the time you are on the job. If you do not do so, you are not considered exempt under that exception.

For example, just because you might have some supervisory responsibilities does not necessarily mean you are exempt from overtime. Many employees with titles like “assistant manager” and “manager” have been held by courts to be entitled to overtime compensation. Likewise, the fact that you have a college degree does not mean that the professional exemption applies to you – this exemption is meant for people doing work that requires a particular certification/educational background, such as attorneys engaged in the practice of law, or doctors engaged in the practice of medicine. Even if you have a graduate degree, you may not be subject to the professional exemption if your duties are not in line with that degree. For example, if you have a business degree, but you are primarily paid a base salary and engaged in selling products or services from your office, you are likely entitled to overtime.

Similarly, just because you are called an Administrator or Administrative Assistant, does not mean that you are subject to the administrative exemption. You must have duties that require the exercise of a fair amount of discretion and independent judgment as to matters of significance at the employer, and be working in the management or general business operations of your employer. Particularly in California, if your job is one dedicated to producing the products or services that are the bread and butter of your employer – as opposed to the overall administration of the employer’s operations – then you should be receiving overtime pay. If you believe your employer has misclassified you as exempt, when you should actually be receiving overtime, contact Lazear Mack today.

Employers often try to nickel and dime their employees in ways that violate state and federal law, by making them work off-the-clock. For example, you may have an “off-the-clock” claim: if you must get to work early, before clocking in, to prepare for your shift; or, if you typically have to use unpaid time to put on and take off certain gear required by your employer (the practice is generally referred to as “donning and doffing”).  You may also have an “off the clock” claim if you are required by your employer to be available by smart phone or other electronic device to respond to emails or other work-related communications when you are off duty; or, if your employer has a policy, practice, or procedure that discourages or prevents you from recording all of your earned overtime.

All of these “nickels” and “dimes” could add up to many dollars for you and your co-workers. Contact Lazear Mack for a consultation about your employer’s off-the-clock practices.

If you work in California and your employer makes you and your co-workers bear routine costs of doing business, you may have a claim under state law to recover unlawful deductions. Does your employer deduct administrative fees from your paycheck? Or do they force you to spend your own money to buy equipment needed to perform your basic job responsibilities? If so, contact Lazear Mack today to discuss your legal options.

Has your employer played the bait-and-switch tactic on you, promising certain commissions, and then changing the deal after you have already done the work? If you are a California employee, you may have recourse under the state’s wage regulations and contract laws. Though you and your employer can agree to any commission structure, the employer likely cannot alter the terms after you have begun performance. If you believe that you and your colleagues are not getting paid all of the commissions to which you believe you are entitled, contact Lazear Mack to consult with an attorney.

Under the FLSA, it is a violation to have a tipped employee (such as a server or bartender) spend in excess of twenty percent (20%) of their time performing non-tipped duties such as maintenance and preparatory work.  It is also a violation of the FLSA to have tipped employees receiving a reduced rate of pay to perform tasks that are completely unrelated to their occupation, such as servers or bartenders’ having to excessively roll silverware, clean restrooms, or prepare food.
Employees with questions about performing excessive sidework can give us a call at 510-735-6316 or fill out our contact form.