|
 All across Sacramento, employees are bringing wage and hour claims against employers for non-compliance. A few common wage claims that a worker will bring, in my experience, are the following:
Overtime - Labor Code sections 510 and 1194 allow an employee to bring an overtime claim against an employer for failing to pay overtime for any work done in excess of eight hours per day or 40 hours per week. If an employer misclassifies a worker as salaried, when he or she should have been paid an hourly wage, the employer can be liable for damages as far as four years back. A quick and simple way to determine whether an employee is classified correctly is to ask whether the employee is performing hourly work more than 50 percent of the time. Failure to keep records of the hours worked is not a defense for the employer and the employee can then make an approximation of the overtime worked. See Hernandez v. Mendoza, 199 Cal. App. 3d 721, 727 (1988). Finally, attorney's fees are mandatory to the prevailing employee. See Early v. Superior Court, 79 Cal. App. 4th 1420 (2000).
Independent Contractors - Often, companies hire individuals to perform duties relating directly to the primary industry of the company (e.g., painting, landscaping, and computer programming), but label these individuals as "independent contractors." Because independent contractors are not "employees," they are not afforded the abundant rights of California's wage law, including overtime, statutory and civil penalties, meal and rest period, and attorney's fees. However, when an employer incorrectly labels an individual as an independent contractor, it can be very costly. The test in making this determination is whether the hiring party has the right to control the manner and means of accomplishing the job. See S.G. Borello & Sons, Inc. v. Dept. of Indust. Rel., 48 Cal. 3d 341 (1989). Other factors include the method of payment to the employee; whether the worker supplies the equipment; whether the work is the regular part of the business; and whether or not the employees believe they are creating an employment relationship.
Indemnification - Labor Code section 2802 requires an employer to indemnify its employees for necessary expenses and costs incurred in the discharge of the employee's duties. Commonly, employees complain that employers made them pay for the costs of uniforms and equipment which are required for them to do their work. Because of the recent spike in gasoline prices, reasonable reimbursement of mileage has also become a prime issue.
Payment of Wages - Employees frequently assert these claims when they believe that they have not been paid right. "Wages" not only include hours worked but not paid, but also bonuses and commissions earned. Labor Code sections 201, 202, and 203 require the immediate payment of wages upon employment separation. Failure to do so results in waiting time penalties of an employee's daily rate of pay multiplied by the number of days the employer willfully failed to pay him, up to 30 days. Although courts must award attorney's fees and costs to the prevailing employee, they must also award the same to prevailing employer. See Labor Code § 218.5.
Galen T. Shimoda is a 2003 graduate of McGeorge School of Law. He has been an associate at Guenard and Bozarth, LLP since 2004 practicing wage and hour, general labor, employment and personal injury laws.
|
