Employment Law Litigation FAQs
Q. What is a class action?
A. A class action is a representative claim, where the same company has wronged many people in the same manner. For example, in an employment situation, if a company does not pay its workers for overtime, one person may act as a representative for many people in the company who are not being paid overtime.
Q. Do we have to pay the attorney up front?
A. No, not with our office, class action claims are generally taken on a contingency based upon the chance of success. There is no recovery fee basis.
Q. Am I going to be charged for the consultation?
A. No, the consultations are free and confidential.
Q. What is minimum wage in California?
A. $8 per hour, except for San Francisco where it is $9.79 (as of Jan 2010)
Q. What qualifies as a meal period or rest period?
A. MEAL PERIOD: a 30 minute uninterrupted, unrestricted, off the clock break. In order to qualify for a meal period at work, your shift must be at least 6 hrs. and a second meal break after 10 hrs may also be required.
REST BREAK: a worker is permitted a rest break every 4 hours for 10 minutes. However, the worker must ask for the break and is not required to take it.
Q. How many hours must I work before I am owed overtime pay? What is proper overtime pay?
A. If you work over 8 hours in a day or more than 40 hours in a week, a non exempt employee is entitled to time and a half pay (hourly rate x 1.5). If you work over 12 hours in a day or 7 days in a week you are entitled to double time (hourly rate x 2)
Q. Is my commute to and from work considered part of my workday?
A. No. However, if you are travelling FOR work to several locations, the drive time between the first and last location can be counted (excluding from home and on the way back home)
Q. If I am on an hourly pay rate, how often should I be paid?
A. At least once every 2 weeks
Q. Should I have to pay for my uniform, boots, and supplies that I am required to use on my job?
A. No. Your company must supply or reimburse expenses. For example, if you are required to purchase a cell phone, a computer, an internet card, or special tools, etc. to carry on business for your employer, your employer must supply those items or reimburse you for those expenses.
Q. How soon after I get terminated must my employer pay me?
Q. If I resign from my employment, how soon after I leave the company should I get my last paycheck?
A. Within 72 hours of leaving the company
Q. What is an exempt or non-exempt employee?
A. An EXEMPT employee is a licensed worker (ie CPA, doctor, attorney), a true manager who has the authority to hire and fire, or someone who is paid more than double minimum wage. Exempt employees do not qualify for overtime/double time pay.
A NON EXEMPT employee is a non-licensed worker who gets paid an hourly rate. Non-exempt employees are subject to overtime and double time pay.
Q. Do I still get promised vacation pay if I am fired before I take the vacation?
A. Yes, however it will be prorated depending on how much time you spent with the company. (if you were promised 1 week a year, but only worked there 6 months, you get paid for half the vacation)
Q. My employer makes us work 10-hour workdays, 4 days a week. It totals to 40 hours a week, but I work more than 8 hours a day. Am I entitled to overtime pay still?
A. Possibly, your company may have an Alternative Workweek set up with the California Department of Labor. The employees must vote for the change in the workweek and then it must get approved by the labor board. If your company uses the Alternative Workweek, then the employees are NOT entitled to overtime pay for working more than 8 hour day shifts. They can however get overtime pay for working more than 40 hours a week.
Q. I receive work related texts, phone calls, and emails when I am not on the clock at work. Â Am I still entitled to be paid for this time?
A. Yes, if the in-flow of calls and messages is heavy and frequent. Also, if the phone or PDA that you use is not work-issued, you may be entitled to reimbursement for the device.
Q. If I make an error on the job that costs the company money, can the company make me pay for it?
A. No, unless it is the result of frequent misconduct.
Q. My check stub is very confusing and does not tell me exactly what I am being paid for. I don’t know how my employer came up with my pay amount. How do I find out?
A. You are entitled to a correct paystub indicating the hours you worked, rate of pay, rate of overtime, etc. if your paycheck is unclear, your employer may be subject to penalties.
Q. Do I Have to Respond to Annoying Emails or Texts After Work Without Pay?
A. No. Your employer is required to pay you for the time that you work after hours. However,this is still a grey area that is not completely settled in the courts. It is possible that the courts could find that an hourly employee is only entitled to compensation for answering cell phones and e-mails off the clock if doing so interferes with the employee’s personal activities.If your off the clock time is severely restricted by being on-call, to answer emails or return cell phone calls, to such an extent that you cannot really use the on-call time as your own (e.g., you must spend a lot of time on the phone or must stay within a certain distance from your place of work or spend a significant amount of time answering texts or emails), and if you are an hourly employee your employer may have to pay you for your on-call time. If, however, you are free to do whatever you like during your on-call time and rarely receive a call, then your employer would only have to pay you for the time you actually spend responding to a business call or email.
Q. Can my employer require me to spend my own money to perform the basic job responsibilities?
A. Yes, but your employer must reimburse you for those expenses. California is one of the few states in the country that has a law requiring employers to reimburse employees for business-related expenses. If your employer forces you to spend your own money to buy equipment that is essential to perform the basic responsibilities of your job, you may have a claim under state law to recover unlawful deductions. See below.
Q. Must my employer reimburse me for all the business out-of-pocket expenses I pay?
A. Yes. Your employer must reimburse you for all necessary expenditures or losses you incur as a consequence of discharging your duties, or obeying the directions of your employer. This includes requiring you to pay for uniforms, supplies, cell phones, gas, internet or other items. Cal. Labor Code 2802
Q. Can my employer make deductions from my paycheck that I have not authorized?
A. No. If your employer makes deductions from your paycheck that you have not authorized, you should contact attorney Steven L. Miller. He can file a lawsuit against your employer to recover your lost wages as well as make a claim for the waiting time penalties, even if you no longer are working at that job. Waiting time penalties reimburses you for the time your employer had the use of your money and you did not. Labor Code 203.
Q. I have been asked to take a photo for my job and pay for it myself. Do I have to do that?
A. No. You need to contact Steven L. Miller because your employer can not require you to take a photo unless your employer pays for taking the photo or reimburses you if you pay for the photo. An employer that requires a photo of an applicant or employee, must pay the cost of the photograph. Labor Code 401.
Q. My employer pays me with a money card. I can only take out $300 without being charged a fee. When I try to take out more, I am charged a fee. Is this fair?
A. No. It is not fair. Under California law, you are entitled to be paid in full upon demand without discount. Being limited to a $300 only withdrawal, and then being charged a fee violates the law. Your employer is taking advantage of you. Don’t allow it.
Q. My employer pays with a check issued from its corporate headquarters in Ohio. They pay me with local Ohio check. When I try to cash my check, my bank tells me, No, because it’s out-of-state. I have to deposit my paycheck into my account and wait several days for it to clear. If I am desperate for money and can’t wait, I have to go to a check cashing place and pay a fee to cash the check. Is this fair?
A. Absolutely not. Like the money card, you are entitled to get paid in full upon demand without discount.
Q. When I started to work, my boss promised me certain commission on each telephone sale that I made, but after I started to work, he changed the amount of the commission. Can he do that?
A. No, probably not. Although your employer and you can agree on a commission structure, your employer can not use a bait-and-switch tactic to alter the terms after you have started working. If you believe you and your colleagues are not getting paid all of the commissions to which you believe you are entitled, contact attorney Steven L. Miller.
Q. My company is starting a new job, and my boss told all of us that we had to post a bond. Can my employer require me to pay for the bond?
A. No. If an employer requires a bond of an applicant or employee, the employer must pay the cost of the bond. Labor Code 401.
Q. I just applied for a job and the person who interviewed my asked me to take a physical exam. Do I have to have a physical exam before I’m even hired. This seems wrong, is it?
A. An employer may not ask a job applicant to take a medical exam before making a job offer. But it’s all right for an employer to condition a job offer on the result of a medical exam if this is required of all entering employees in the same job category.
Q. My boss at the restaurant where I work collects all the waiters and waitresses’ tips at the end of the night and keeps them. If he forgets to collect the tips, we have to tell him the amount of our tips, and he deducts the amount of the tips from our paycheck? Can he do that?
A. No. If so, you need to call Steven L. Miller because it is illegal of your employer to take your tips. An employer cannot collect, take, or receive any part of the tips given or left for an employee, or deduct any amount from wages due an employee on account of a gratuity given or left for an employee However, a restaurant may have a policy allowing for tip pooling/sharing among employees who provide direct table service to customers. Cal. Labor Code 351
Q. At my job, there may be three assignments in different parts of the city, and I have to drive my own car from one assignment to the next. Doesn’t my boss have to pay me for driving to these assignments?
A. It depends. In a somewhat recent case, workers who tried to get paid for driving to and from assignments off company property must demonstrate that their travel is an integral and indispensable part of the principal activities for which the worker is employed.