Wage Law

Where To File Your Wage Claim With The Labor Commissioner

We get a lot of emails from people wondering where they can go to file their wage claims with the Labor Commissioner. Here, per the DLSE website, is a list of locations and contact numbers. The numbers listed in red below are lines that contain general information on wage and hour issues. If the information you need is not provided in the general information, or if you have a question regarding a claim already filed, please call the general office number listed below in black.

Bakersfield 5555 California Avenue, Suite 200 Bakersfield, CA 93309 (661) 395-2710 (661) 859-2462	Redding 2115 Civic Center Drive, Room 17 Redding, CA 96001 (530) 225-2655 (530) 229-0565	San Jose 100 Paseo de San Antonio, Room 120 San Jose, CA 95113 (408) 277-1266 (408) 277-3711
El Centro 1550 W. Main St. El Centro, CA 92243 (760) 353-0607 (760) 353-2544	Sacramento 2031 Howe Avenue, Suite 100 Sacramento, CA 95825 (916) 263-1811 (916) 263-5378	Santa Ana 28 Civic Center Plaza, Room 625 Santa Ana, CA 92701 (714) 558-4910 (714) 558-4574
Eureka 619 Second Street, Room 109 Eureka, CA 95501 (707) 445-6613 (707) 441-4604	Salinas 1870 N. Main St., Suite 150 Salinas, CA 93906 (831) 443-3041 (831) 443-3029	Santa Barbara 411 E. Canon Perdido, Room 3 Santa Barbara, CA 93101 (805) 568-1222 (805) 965-7214
Fresno 770 E. Shaw Avenue, Room 315 Fresno, CA 93710 (559) 244-5340 (559) 248-8398	San Bernardino 464 W. Fourth Street, Room 348 San Bernardino, CA 92401 (909) 383-4334 (909) 889-8120	Santa Rosa 50 "D" Street, Suite 360 Santa Rosa, CA 95404 (707) 576-2362 (707) 576-2459
Long Beach 300 Oceangate, Suite 302 Long Beach, CA 90802 (562) 590-5048 (562) 491-0160	San Diego 7575 Metropolitan Dr., Rm. 210 San Diego, CA 92108 (619) 220-5451 (619) 682-7221	Stockton 31 E. Channel Street, Room 317 Stockton, CA 95202 (209) 948-7771 (209) 941-1906
Los Angeles 320 W. Fourth Street, Suite 450 Los Angeles, CA 90013 (213) 620-6330 (213) 576-6227	San Francisco 455 Golden Gate Ave., 10th Floor San Francisco, CA 94102 (415) 703-5300 (415) 703-5444	Van Nuys 6150 Van Nuys Blvd., Room 206 Van Nuys, CA 91401 (818) 901-5315 (818) 908-4556
Oakland 1515 Clay Street, Suite 801 Oakland, CA 94612 (510) 622-3273 (510) 622-2660	San Francisco--Headquarters 455 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 (415) 703-4810

But What If The Boss Fires Me When I Ask For Overtime

From an email we received recently:

Q: I know my employer is required to pay overtime when we work over eight hours per day, but they don't, and I am afraid I will lose my job if I speak out. Can they fire me for complaining about the overtime pay?

A: No. Demanding wages and reporting violations of wage and hour laws is protected conduct, favored by a fundamental public policy of the State of California. Retaliation or termination of an employee for demanding full payment of wages is a violation of public policy and supports a cause of action for wrongful termination. Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal. App. 4th 1137, 1150; Phillips v. Gemini Moving Specialists (1998) 63 Cal. App. 4th 563.

We had a case a few years ago that would not have been worth taking but for the fact that the employee was fired for demanding about $1,500 in overtime pay. The case settled for many times what the employer owed in back pay.

The Five Most Common Wage Mistakes Made by Employers

From what we've observed within the last five years:

Not Paying an Employee's Final Wages on Time.

In most cases, an employer must pay all of the wages earned, at the time of terminating an employee, or on aq resigning employee's last day. This time can be extended to 72 hours after resignation if an employee quits without notice. An employer who fails to do so may be required to pay penalty wages of up to 30 days pay (note: this included full pay on Saturday and Sunday, even if the employee doesn't normally work on those days). The final pay due at the end of employment includes vacation pay, which is frequently paid late. Often, these violations are systematic and can lead to costly liabilities to an entire class of workers.

Misclassifying Exempt Employees.

In our experience, most salaried employees who are classified as "managers" are improperly classified as exempt. To be properly classified as an exempt employee, a manager must be paid a salary of no less than twice the minimum wage; and must supervise (which generally must include the power to hire and fire) two or more employees; and must customarily exercise independent discretion; and must spend more than 50% of the time performing those managerial tasks, rather than the same sort of work as their hourly underlings. Often, employers will simply add a small amount of managerial authority to a crew member, call that crew member the manager, and put them on a salary. While there is nothing wrong with do that, it does not excuse the employer from paying overtime if that salaried worker then works more than 8 hours per day or 40 hours per week. If those improperly classified employees work long hours, they may be entitled to overtime pay reaching back four years. If the hours are long enough, the liability can easily exceed a year's worth of ordinary salary. Since the Sav-On case last year, these misclassification cases have well suited for wage and hour class action lawsuits for which liability can be in the tens of millions of dollars companywide.

Failing to Permit Meal/Rest Periods.

Employees working more than 5 hours per day must be provided 30-minute meal periods unless they work shifts of six hours or less and agree to waive the break for that day. If the shift lasts ten hours or more, a second meal period is required.  The employees must be relieved of all job duties and may not have their breaks interrupted with work. In addition, employers are required to permit and authorize employees to take ten minute breaks, with pay, for every four hours of work "or major fraction thereof." That means that the second break obligation applies if a shift exceeds six hours, and a third applies if the shift exceeds ten hours. Employers who do not provide the breaks required under California law must pay the affected employee an extra hour of pay at the employee's regular rate of pay for that day. Our firm has certified several class actions involving meal period and rest period violations. At an hour of pay per employee per day, the liability can be substantial.

Taking or Receiving Tips.

Although tip pooling among non-management employees is permitted, no employer or supervisor may collect, take or receive tips left for by patrons for its employees. We most often see this in restaurants, salons and, surprisingly, car washes.

Failing to Provide Itemized Wage Statements.

Employers must provide an itemized wage statement showing: the employer's name and address, the employee's name and social security number, the payperiod dates, gross/net wages, deductions, total hours worked, applicable hourly rates and hours worked at each rate. Many employers who misclassify employees get into added trouble by not documenting and reporting the actual hours worked on each paystub, resulting in additional penalties due.

Are You Really in Outside Sales?

Outside salespeople in California are like the last of the bareback riders when it comes to legal protections from hard employment practices. The outside salesperson has almost no protection under any California Industrial Welfare Commission wage order. Outside salespersons are entitled to virtually no wage protections. They need not be guaranteed overtime pay, breaks, or minimum wage. You can almost literally work an outside salesperson to death and guarantee them nothing more than taste of his or her own productivity.

Who is an outside salesperson? Each wage order (8 Cal. Code Reg. §§ 10110 et seq.) defines an outside salesperson with the same language:

"any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities."

However....

Many employers routinely misclassify their employees as outside sales staff. Common examples include commissioned employees who spend time delivering product, even if on a regular "sales route." For example, in Ramirez v. Yosemite Water Co., Inc. (1999) 20 Cal.4th 785, 796, the court found it to be a factual question whether "route sales representatives" for a bottled water company spent more than half of their time in sales as opposed to delivery activities. The actual activities here control. The employer's job description was not controlling. The important analysis is that of "the realistic requirements of the job." In other words, "how the employee actually spends his or her time" and "whether the employee's practice diverges from the employer's realistic expectations."

If you spend more of your time performing customer service, delivering product, making repairs and other activities that are not part of the sales and marketing of the goods or services sold by the employer, you probably are not an outside sales representative, no matter what your business card calls you.

Likewise, if you spend a significant amount of time at your employer's place of business, you are not in "outside" sales. For example, if you spend 75% of your time engaged in sales activity, and 25% of your time doing customer service, you are primarily engaged in sales activities. But if half of that sales activity is performed in your office at the company, you spend only 37.5% of your time in "outside sales." That makes you an inside saleperson, and, with the exception of mercantile, professional, technical, clerical, mechanical and similar industries, you are non-exempt from almost all wage order protections.

But, if you are under 18, it doesn't matter what you do. You are not an outside salesperson. You are entitled to overtime, when applicable. You must make at least minimum wage. And you are entitled to breaks and other protections provided by the wage order applicable to your industry.

These cases often qualify for class action status. We have represented employees misclassified as outside sales in the automotive industry, water and other delivery businesses, the paint and auto body industry and the construction industry. If you would like to have your situation reviewed to see if you have a claim, drop us an email and we would be happy to give you an evaluation.

Training Time Pay

Though employers do not like to pay for training time, it is usually compensable.

For an employer to avoid paying for training time, four general criteria must be met: (i) the training attendance must be before or after regular working hours; (ii) the employee must not be performing work during the training; (iii) attendance must be voluntary; and (iv) the training duties must not be directly related to the employee's job.

Frequently, however, employees are ordered to attend training -- retail sales employers are notorious for this violation -- but are told to attend the training on their own time. If the training is mandatory, the employee must be paid. If the employee is subject to the employer's control during the training, the employee must be paid. If the employee is trained during regular work hours, the training is on the clock.

One employer we recently sued had a policy of requiring its employees to attend a sales course, which cost the employees $500 each. The course explained, among other things, how to document and solicit sales of that particular employer's products, and the cost of "tuition" was paid over five pay periods via $100 payroll deductions. The employer was quick to settle once it hired legal counsel.

If you are a non-exempt employee, and your employer requires you to attend training related to your work, you are entitled to be paid wages for the time spent in mandatory training sessions, and if there is any expense incurred, including mileage and parking, you are entitled to reimbursement for those expenses. If you have any questions, feel free to drop us an email.

The Commissioned Sales Exemption

A client came to us recently to inquire about the lawfulness of his employer's progressive discipline policy. He wasn't actually seeking our services for a wage and hour issue, but we nonetheless asked him what kind of hours he kept, and whether he ever received overtime pay.

"Yeah, I've heard about some of those overtime lawsuits," he said, "but I don't have one. You see, I'm on a straight commission."

Five minutes later, we had concluded that his employer's progressive discipline policy was quite lawful, but its overtime policy violated California wage and hour law. Yes, it is common knowledge among salespeople that overtime pay is not due to a commissioned salesperson. Common knowledge, however, is not always correct.

Under California law, the "commissioned sales exemption" does not apply unless (i) the employee is an "outside" salesperson, who spends more than half of their time engaging in sales activities outside the employer's place of business; or (ii) the salesperson makes more than 1 ½ times the minimum wage, and more than half of that employee’s compensation represents commissions.

More importantly, the "commissioned inside sales exemption" only applies to workers who are employed in the mercantile industry (covered by Wage Order 7) or in professional, technical, clerical, mechanical and similar occupations (covered by Wage Order 4). Who are those?

The "Mercantile Industry" means any industry, business, or establishment operated for the purpose of purchasing, selling, or distributing goods or commodities at wholesale or retail; or for the purpose of renting goods or commodities. Obvious examples include retail stores, leasing companies and automobile dealerships.

The "Professional, Technical, Clerical, Mechanical, and Similar Occupations" include professional, managerial, supervisorial, laboratory, research, technical, clerical, office work, and mechanical occupations, such as accountants; agents; appraisers; artists; attendants; audio-visual technicians; bookkeepers; bundlers; billposters; canvassers; carriers; cashiers; checkers; clerks; collectors; communications and sound technicians; compilers; copy holders; copy readers; copy writers; computer programmers and operators; demonstrators and display representatives; dispatchers; distributors; door-keepers; drafters; elevator operators; estimators; editors; graphic arts technicians; guards; guides; hosts; inspectors; installers; instructors; interviewers; investigators; librarians; laboratory workers; machine operators; mechanics; mailers; messengers; medical and dental technicians and technologists; models; nurses; packagers; photographers; porters and cleaners; process servers; printers; proof readers; salespersons and sales agents; secretaries; sign erectors; sign painters; social workers; solicitors; statisticians; stenographers; teachers; telephone, radio-telephone, telegraph and call-out operators; tellers; ticket agents; tracers; typists; vehicle operators; x-ray technicians; their assistants and other related occupations listed as professional, semiprofessional, technical, clerical, mechanical, and kindred occupations.

Do those descriptions cover your employer's place of business? It is important to note that what matters is not what an employee's job may be. What matters is the primary purpose of the business for which the employee works.

For example, a person who sells parts for a Ford dealership would likely be governed by the mercantile industry's commissioned salesperson exemption under Wage Order 7. A person who does precisely the same work for an automotive repair shop would not. Auto repair shops are governed by Wage Order 9, pertaining to working conditions in the transportation industry. That wage order contains no commissioned salesperson exemption.

Likewise, someone paid a commission to drum up business for a print shop would be exempt under Wage Order 4. Someone who does the same for a restaurant's banquet hall (covered by Wage Order 5 -- hospitality industry), or a health club (Wage Order 2 - personal service industry), would be entitled to overtime pay.

If you are working long hours on a straight commission (or a "draw against commission") basis, you might have a significant amount of back pay due to you. If you are in the restaurant, auto repair, manufacturing, farming, filmmaking or construction industries -- in other words, unless Wage Orders 4 or Wage Order 7 apply to your employer -- you are entitled to overtime pay if you work overtime hours, in spite of what your manager may be telling you.

If you aren't sure whether the commissioned sales exemption applies to you, and you would like to know, send us an email, or contact our firm. Perhaps we can help you.

Tip-Pooling: Not Always Legal; Not Always Illegal

The little known law found at California Labor Code § 351 was enacted to protect all tipped employees from the over-reaching employers. It prohibits employers from maintaining any tip-pooling policy which requires employees to distribute or share any part of their tips with any owner, manager or supervisor of the business. Thus, any system under which any person with supervisory capacity over the tipped employees can collect or receive any portion of any tips paid, given to or left for another employee is illegal.

Moreoever, the law prohibits employers from accounting for such tips "on the back end" by decreasing or deducting from the wages of an employee who receives gratuities. A tip left by a customer is the "sole property of the employee or employees to whom it was paid, given or left for," regarding of the type of business or the rules imposed by the employer.

This does not mean that all tip-pooling policies are unlawful. A tip-pooling policy that requires employees to share tips with other non-supervisory employees may be perfectly lawful. Typical pooling programs that comply with the law include restaurant policies requiring food servers to share tips with bussers or bartenders, or casino tip pools shared by every card dealer working a particular shift. However, if tips are pooled in any way that allows the fingers of a supervisor, owner or manager into the tip jar, the tipped employees may have a valuable claim for wages, interest and penalties under the Labor Code.

Exempt Employee Holiday Pay

Holiday pay for exempt, salaried, employees can be confusing to both employee and employer. The general rule, however, is simply. If a salaried exempt employee is ready, willing and able to work, the employer may not deduct from his or her salary if the business is closed for less than a full workweek. Thus, for example, when a business closes on the Friday after Thanksgiving or any other Thursday holiday, or the Monday before a Tuesday holiday, or any other one-day closure, the hourly employees need not be paid, but the salaried employees are credited with, and paid for, a full workweek. The same rule applies for deductions taken in the form of compelled use of vacation time or "paid time off." Exempt employees may be denied pay if the business closes for an entire workweek, as long as the employee performs no work during that week, and as long as the deduction from payroll does not reduce that employee's monthly compensation to an amount below the required minimum for his or her exemption.

The Computer Professional Exemption

The exemption pay rate for computer professionals in California is going up this weekend.

Many computer professionals believe that they are exempt from overtime pay just because they are on a salary. That belief is usually misguided. Programmers are rarely [correctly] classified as exempt professionals or administrators, because few computer programmers meet the definitions of the wage order exemptions. There are three commonly applied exemptions for salaried workers:

(i) The administrative exemption: this applies to employees who perform work "directly related to management policies or general business operations of the employer." Even if you meet this description, you are no exempt if you are a "production employee" -- one whose primary duty is producing the goods or services that the business exists to produce.

(ii) The executive or "managerial" exemption: this applies to employees "whose duties and responsibilities involve the management of the enterprise." There are a number of tests, all of which must be met, for an employee to qualify for this exemption, e.g., the employee must have the power to hire and fire (or have significant input into hiring and firing) and must supervise two or more subordinates.

(iii) The professional exemption:  this generally applies to licensed professions, such as lawyers, accountants, doctors and similar occupations.

Very, very few computer workers fall into any of these three exemptions. Thus, if you are a software engineer who spends a majority of time doing software-related work, such as writing code, debugging and similar tasks, if you work long hours for a fixed salary, your employer might owe you a significant amount of back overtime.

The same is not necessarily true of employees in the computer software field who are paid by the hour. Software professionals can be exempt from overtime pay if they are paid by the hour, and they earn more than $44.63 per hour. This rate increases to $45.84 per hour on January 1, 2005. The software professional exemption is different from most of the other exemptions, because it requires that the employee receive pay for every hour -- overtime or otherwise -- that the employee works. The exemption merely excuses the employer from paying the overtime premium rate of time-and-a-half.

Do you have a case? If you work in California and spend most of your time programming software, and you do not get paid for more than 40 hours per week, or 8 hours per day, you probably have a case. If you would like to have your situation reviewed to see if you have a claim, drop us an email and we would be happy to give you a free evaluation.