OT when you've not yet acquired 40 hours & unpaid drive time
I work for a company that is contracted by a major electrical company & I am scheduled to work a 10 - 4 work schedule Mon.- Thurs. On Wednesday I had a doctors appointment so I left an hour early. The next day I worked 11.5 hours. Am I only entitled to .5 hrs. of overtime or 1.5 hrs.? Basically do I have to acquire 40 hours before I'm paid overtime even though I worked more than 10 hours that day?
Secondly, my company provides us company vehicles that we take home every night. They make us give them 20 min. in the morning & 20 min. at the end of our day for which we are unpaid. I.e. I leave at 6:40 a.m. & get home 5:50 p.m. We are written up if we leave late or get home early. They claim that those 40 minutes we aren't technically "working", although we frequently take phone calls & receive texts from customers during those times. Strange claim because if we were to get in an accident I can assure we would be held accountable. Is this legal?
Answers (1)
This answer is for general information and should not be taken as legal advice. Legal advice must be based on detailed, specific facts beyond what is possible to obtain on a public web site such as this. Plus, there is no confidentiality on a public web site. To protect your rights, you must obtain confidential legal advice from an attorney.
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You probably had no idea that the answer to your question is as complicated as it is. Please read my response carefully!
First, I don't know why you are asking about .5 and 1.5 hours of overtime. Neither is correct. Generally, under California law, employees are entitled to be paid an overtime premium for all time worked above 8 hours in one workday (daily overtime), and for all time worked above 40 hours in one workweek (weekly overtime). Employees are not entitled to more than one premium per hour; for example, if an employee works 8 hours on Monday, Tuesday, Wednesday, and Thursday, and 10 hours on Friday, the employee has worked 42 hours in the week. The employee is entitled to 2 hours of overtime pay for the last 2 hours worked on Friday. The employee is also entitled to 2 hours overtime for the 2 hours worked in the week that are above 40. However, the employee is not entitled to a double recovery. For that week, the employee is entitled to a total of 2 hours of overtime.
Second, most California employees are entitled to one meal period of at least 30 minutes if they work 5 hours or more in one day (unless they are exempt from overtime). However, the employee and the employer can mutually agree to waive the meal period if the employee works no more than 6 hours in one day. Employees who work more than 6 hours in one day may not waive their meal breaks. The 30 minute meal break must be a full 30 minutes -- not 29 minutes -- and must be COMPLETELY free from duty. These 30 minutes must be “net.” They cannot include time spent walking to a time clock; the 30 minutes must be actual break time. The meal period should be given in the middle of the work day. The meal period is unpaid.
Therefore, evidently, your standard workday is 6 hours (10:00-4:00) from start to end. It should not matter if any of your time on Thursday was agreed upon as make up for leaving early on Wednesday because if it were, it would only add the 1 hour you left early on Wednesday, and 6 hours + 1 hour is still less than 8 hours.
You do not mention lunch, so for purposes of this answer I will assume you received a 30 minute break each day; I therefore deducted that half-hour from the total worked each day in the calculation below. Thus, you worked as follows:
Mon: 5.5 hrs. worked (6.0 hrs. – 0.5 for lunch)
Tues: 5.5 hrs. worked (6.0 hrs. – 0.5 for lunch)
Wed: 4.5 hrs. worked (6.0 hrs. – 0.5 for lunch = 5.5 hrs. – 1 hr. early leave)
Thurs: 11.0 hrs. worked (11.5 hrs. – 0.5 for lunch)
Fri: 5.5 hrs. worked (6.0 hrs. – 0.5 for lunch)
_____
30.5 hrs. TOTAL for the week
Because you worked less than 40 hours in the workweek, you would not be entitled to weekly overtime. You should receive 3 hours of daily overtime for working 3 hours above 8 on Thursday.
Now, if you did not receive a lunch, the situation is far more complicated. As I said above, most California employees should get at least a 30 minute meal break every day.
Employees are also entitled to one 10-minute rest period for every 4-hour period of work performed, or major fraction of the hour. If an employee works 3-1/2 hours per day, there is no rest period requirement. The rest period must be 10 full minutes -- not 9 -- and must be completely free from duty in most cases. These 10 minutes must be “net.” The rest periods should be given in the middle of each 4-hour block of time. The rest periods are paid.
Example A: The employee works an 8 hour shift from 8:00 a.m. to 4:30 p.m. There should be one 10-minute rest break at approximately 10:00 a.m. The meal break should be from approximately 12:00 p.m. to 12:30 p.m. There should be a second 10-minute rest break at approximately 2:30 p.m.
Example B: The employee works a 5 hour shift from 12:00 p.m. to 5:00 p.m. There should be one 10-minute rest break at approximately 2:30 p.m.
Example C: The employee works a 6 hour shift from 12:00 p.m. to 6:00 p.m. The employee and employer have agreed to waive the meal break. There should be one 10-minute rest break at approximately 3:00 p.m.
Example D: The employee works a 6 hour shift from 12:00 p.m. to 6:00 p.m. The employee and employer have NOT agreed to waive the meal break. There should be one 30-minute meal break from approximately 2:45 p.m. to 3:15 p.m.
The employer must make meal and rest breaks available to employees and cannot interfere with the employees’ freedom to take the breaks and cannot discourage employees from taking breaks. However, the employer does not have to make sure employees actually take the breaks.
If the employer has PREVENTED or INTERFERED WITH the employees' ability to take breaks, the employer may have to pay a penalty of one additional hour's pay for every day in which a meal break is not allowed, and one additional hour's pay for every day in which one or both rest breaks are not allowed.
There are some industries, such as the motion picture industry, that must follow different rules. You should always check with an attorney if you want to be certain about your rights.
Based on all of the above, you might be entitled to 3 hours of overtime + penalties for meal breaks and rest breaks, if the employer did not allow you to take these breaks. And if the employer treated all employees the same way with respect to denying breaks, there may be substantial liability involved, especially because an employee can recover the penalty for breaks going back in time for a limited period.
Now, assume your employer does not pay you all the overtime you are due and/or did not allow you to take all the breaks you are entitled to. Then what? Even if your employer violated the law, there may be many reasons not to do anything about it just now. Taking action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about unlawful pay practices, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking retaliatory action in the first place. You may find yourself out of a job in this difficult economy and unable to find a new job. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.
There is an alternative, though it involves waiting. California law requires an employer to pay an employee all accrued wages, vacation, PTO, and ascertainable commissions AT THE TIME the employer ends the employment relationship. If the employee quits without advance notice, the employer has 72 hours to make this payment.
If the employer does not pay as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit.
So when your employment with this employer ends you can pursue a wage claim or lawsuit if you are not paid everything as required, provided you are still within the time limit (see below).
You will need documentation to support your case. Keep your documentation at home, not at work, to make sure it remains private and doesn't disappear. For documentation:
Keep track of all the information related to this situation. Write down the details using names, dates, location, witnesses, times of day – as much as you can. Save copies of any documents.
For every work day, keep a log of all your work time, including the time you start working, the time you stop working, and the start and stop times of any breaks (meal or rest). Time spent walking to or from a time clock is considered work time, not break time. Many people find it helpful to keep this information on a calendar.
When you are ready, there are several ways to pursue your unpaid wages: The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm. You have THREE YEARS from the last day of work to file a Labor Commissioner claim for unpaid wages.
If you pursue a lawsuit in state court, you have the potential to recover unpaid wages going back FOUR YEARS (instead of three) from the date you file suit, per Business & Professions Code sections 17200 et seq.
You have one year to pursue the meal and rest break penalties, regardless of whether you pursue them in court or otherwise.
Finally, you can settle your claims with your employer without filing any action at all, provided your employer is willing – and some are, in order to avoid legal action. This is usually more effective if you are working with an attorney.
No matter what path you choose, your best bet is always to consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation and go over your time limits. Please do not rely on general information from a public site such as this.
To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.
I hope there is a good resolution to this situation.
Marilynn Mika Spencer
San Diego
posted by Marilynn Mika Spencer | Aug 3, 2017 6:43 PM [EST]
_______________________________________________________________
You probably had no idea that the answer to your question is as complicated as it is. Please read my response carefully!
First, I don't know why you are asking about .5 and 1.5 hours of overtime. Neither is correct. Generally, under California law, employees are entitled to be paid an overtime premium for all time worked above 8 hours in one workday (daily overtime), and for all time worked above 40 hours in one workweek (weekly overtime). Employees are not entitled to more than one premium per hour; for example, if an employee works 8 hours on Monday, Tuesday, Wednesday, and Thursday, and 10 hours on Friday, the employee has worked 42 hours in the week. The employee is entitled to 2 hours of overtime pay for the last 2 hours worked on Friday. The employee is also entitled to 2 hours overtime for the 2 hours worked in the week that are above 40. However, the employee is not entitled to a double recovery. For that week, the employee is entitled to a total of 2 hours of overtime.
Second, most California employees are entitled to one meal period of at least 30 minutes if they work 5 hours or more in one day (unless they are exempt from overtime). However, the employee and the employer can mutually agree to waive the meal period if the employee works no more than 6 hours in one day. Employees who work more than 6 hours in one day may not waive their meal breaks. The 30 minute meal break must be a full 30 minutes -- not 29 minutes -- and must be COMPLETELY free from duty. These 30 minutes must be “net.” They cannot include time spent walking to a time clock; the 30 minutes must be actual break time. The meal period should be given in the middle of the work day. The meal period is unpaid.
Therefore, evidently, your standard workday is 6 hours (10:00-4:00) from start to end. It should not matter if any of your time on Thursday was agreed upon as make up for leaving early on Wednesday because if it were, it would only add the 1 hour you left early on Wednesday, and 6 hours + 1 hour is still less than 8 hours.
You do not mention lunch, so for purposes of this answer I will assume you received a 30 minute break each day; I therefore deducted that half-hour from the total worked each day in the calculation below. Thus, you worked as follows:
Mon: 5.5 hrs. worked (6.0 hrs. – 0.5 for lunch)
Tues: 5.5 hrs. worked (6.0 hrs. – 0.5 for lunch)
Wed: 4.5 hrs. worked (6.0 hrs. – 0.5 for lunch = 5.5 hrs. – 1 hr. early leave)
Thurs: 11.0 hrs. worked (11.5 hrs. – 0.5 for lunch)
Fri: 5.5 hrs. worked (6.0 hrs. – 0.5 for lunch)
_____
30.5 hrs. TOTAL for the week
Because you worked less than 40 hours in the workweek, you would not be entitled to weekly overtime. You should receive 3 hours of daily overtime for working 3 hours above 8 on Thursday.
Now, if you did not receive a lunch, the situation is far more complicated. As I said above, most California employees should get at least a 30 minute meal break every day.
Employees are also entitled to one 10-minute rest period for every 4-hour period of work performed, or major fraction of the hour. If an employee works 3-1/2 hours per day, there is no rest period requirement. The rest period must be 10 full minutes -- not 9 -- and must be completely free from duty in most cases. These 10 minutes must be “net.” The rest periods should be given in the middle of each 4-hour block of time. The rest periods are paid.
Example A: The employee works an 8 hour shift from 8:00 a.m. to 4:30 p.m. There should be one 10-minute rest break at approximately 10:00 a.m. The meal break should be from approximately 12:00 p.m. to 12:30 p.m. There should be a second 10-minute rest break at approximately 2:30 p.m.
Example B: The employee works a 5 hour shift from 12:00 p.m. to 5:00 p.m. There should be one 10-minute rest break at approximately 2:30 p.m.
Example C: The employee works a 6 hour shift from 12:00 p.m. to 6:00 p.m. The employee and employer have agreed to waive the meal break. There should be one 10-minute rest break at approximately 3:00 p.m.
Example D: The employee works a 6 hour shift from 12:00 p.m. to 6:00 p.m. The employee and employer have NOT agreed to waive the meal break. There should be one 30-minute meal break from approximately 2:45 p.m. to 3:15 p.m.
The employer must make meal and rest breaks available to employees and cannot interfere with the employees’ freedom to take the breaks and cannot discourage employees from taking breaks. However, the employer does not have to make sure employees actually take the breaks.
If the employer has PREVENTED or INTERFERED WITH the employees' ability to take breaks, the employer may have to pay a penalty of one additional hour's pay for every day in which a meal break is not allowed, and one additional hour's pay for every day in which one or both rest breaks are not allowed.
There are some industries, such as the motion picture industry, that must follow different rules. You should always check with an attorney if you want to be certain about your rights.
Based on all of the above, you might be entitled to 3 hours of overtime + penalties for meal breaks and rest breaks, if the employer did not allow you to take these breaks. And if the employer treated all employees the same way with respect to denying breaks, there may be substantial liability involved, especially because an employee can recover the penalty for breaks going back in time for a limited period.
Now, assume your employer does not pay you all the overtime you are due and/or did not allow you to take all the breaks you are entitled to. Then what? Even if your employer violated the law, there may be many reasons not to do anything about it just now. Taking action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about unlawful pay practices, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking retaliatory action in the first place. You may find yourself out of a job in this difficult economy and unable to find a new job. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.
There is an alternative, though it involves waiting. California law requires an employer to pay an employee all accrued wages, vacation, PTO, and ascertainable commissions AT THE TIME the employer ends the employment relationship. If the employee quits without advance notice, the employer has 72 hours to make this payment.
If the employer does not pay as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit.
So when your employment with this employer ends you can pursue a wage claim or lawsuit if you are not paid everything as required, provided you are still within the time limit (see below).
You will need documentation to support your case. Keep your documentation at home, not at work, to make sure it remains private and doesn't disappear. For documentation:
Keep track of all the information related to this situation. Write down the details using names, dates, location, witnesses, times of day – as much as you can. Save copies of any documents.
For every work day, keep a log of all your work time, including the time you start working, the time you stop working, and the start and stop times of any breaks (meal or rest). Time spent walking to or from a time clock is considered work time, not break time. Many people find it helpful to keep this information on a calendar.
When you are ready, there are several ways to pursue your unpaid wages: The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm. You have THREE YEARS from the last day of work to file a Labor Commissioner claim for unpaid wages.
If you pursue a lawsuit in state court, you have the potential to recover unpaid wages going back FOUR YEARS (instead of three) from the date you file suit, per Business & Professions Code sections 17200 et seq.
You have one year to pursue the meal and rest break penalties, regardless of whether you pursue them in court or otherwise.
Finally, you can settle your claims with your employer without filing any action at all, provided your employer is willing – and some are, in order to avoid legal action. This is usually more effective if you are working with an attorney.
No matter what path you choose, your best bet is always to consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation and go over your time limits. Please do not rely on general information from a public site such as this.
To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.
I hope there is a good resolution to this situation.
Marilynn Mika Spencer
San Diego
posted by Marilynn Mika Spencer | Aug 3, 2017 6:43 PM [EST]
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