Employment Categories

05 Apr What if my employer doesn’t know that I’m working overtime?

What if my employer gives me more work than I can accomplish in 40 hours and I have to work nights and weekends to get it done? An employer has a right to prohibit you from working overtime. But, if you work that time, and they haven’t strictly forbidden you from working the overtime hours, then technically, you should still be entitled to overtime pay. If they tell you, “Do not work more than 40 hours,” and you go ahead and do so anyway, then that’s a different story, and you may not be able to recover overtime pay. But, if they give you the work, and they don’t tell you not to spend as much time on it as you need to, then you are entitled to overtime pay. Each case is different, and if the court was looking at it, they might adjust how much overtime pay you are entitled to, depending on the specific circumstances of how you went about working those overtime hours and whether your employer knew about it. If you believe that your employer has failed to pay you overtime that you have earned, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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02 Apr Proving overtime claims when there has been inadequate record-keeping

California law requires employers to keep and maintain records on the hours that their non-exempt employees work. If they fail to do so, they can be liable for penalties under the California labor code. In addition, if the employer is being sued for failure to pay overtime, for instance, and they don’t have records, then the court will allow the employee who is suing to estimate the amount of overtime they have worked and take that into consideration in determining how much the employee is entitled to recover. If you believe that your employer has failed to pay you overtime that you have earned, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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12 Mar How do I know if I am properly classified as an independent contractor?

Independent contractors are treated differently than employees under California law. California, being a relatively pro-employee state presumes that if you’re working for somebody, you are an employee. The burden is on the employer who wants to treat you as an independent contractor to demonstrate that you are properly characterized as an independent contractor.  Just because a person has a contract that says you’re an independent contractor, it’s dispositive proof that you are, in fact, an independent contractor under the law. There are a number of factors to consider when determining if there is an employer-employee relationship, or if there is an independent contractor relationship. The main factor is whether the person or entity hiring the person has a right to control how the end result is achieved. In other words, what is the extent of the employer’s right to control the manner and means of the employee’s performance. If the employer exercises control over the person in terms of the manner and means of performing their job, then they are more likely an employee as opposed to an independent contractor.   Some of the other factors to consider are whether the employment relationship can be terminated at will, and whether the worker is engaging in an occupation or business that is distinct from the employer’s business or occupation. By way of example, that could be, for instance, if the business is a law firm and it hire somebody to come and do IT work for it here and there, that is a distinct business from the  employer (meaning the law firm’s business), so that would probably favor characterizing the IT person as an independent contractor. Another factor is whether the type of work performed is usually done under the employer’s direction, or it’s done by a specialist without supervision. If you’re an IT professional, and you’re coming in and setting up a computer for a business you might probably be properly characterized as an independent contractor because you are likely doing it without any supervision or direction by the company that has hired you. Another factor is the skill that’s required to perform the work, and whether the business provides the instrumentalities, tools and place of work. For instance, if you do landscaping or cleaning services, and you bring your own cleaning or landscaping tools, and you do it at the hirer’s residence or place of business, then you might be considered an independent contractor. Another factor is the length of time for which the services are to be performed.  An issue that comes up a lot is whether the worker, the person hired, can hire and fire other people. If you can hire and fire others, then you are probably not an independent contractor. Another issue to consider is whether payment for work is done by time, piece-rate, or job. For example, with the IT professional, if you are paid to set up a computer, and are paid for each computer that you set up, this might favor being characterized as an independent contractor. While a written contract that says that you’re an independent contractor doesn’t necessarily mean that under the law you should be considered an independent contractor, it is taken into consideration. If the parties believe they are creating an employment relationship, or if they believe they are creating an independent contractor relationship, then that fact is also used in determining whether you should be an independent contractor or an employee. If you believe that your employer has wrongfully classified you as an independent contractor, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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06 Mar How do I know if I’m properly classified as “Exempt”?

California law presumes that an employee should be non-exempt, and the burden is placed on the employer claiming the exemption to demonstrate that the exemption applies to its employee by showing that the employee fits plainly and unmistakably within the exemptions’ terms. It is a mixed question of law and fact, but again, the burden is on the employer, and California law is more protective than federal law on this issue. There are several categories of exempt employees addressed within the California wage and hour laws. Each of those categories of employees must meet certain criteria to qualify under the category. All of them use what is called the “primarily engaged in” test, which is that if you are primarily engaged in duties that meet the test of the exemption, then you could be considered an exempt employee. Primarily engaged means more than 50% of the work that you do falls within the exemption. One of the more common exemptions is the executive, administrative and professional employees exemption. To be exempt under this category, you have to be primarily engaged in duties that meet the test of the exemption, which are established by a wage order. To be exempt under this exemption, you have to customarily and regularly exercise discretion and independent judgment in performing those duties. Also, you have to earn a monthly salary that is equivalent to no less than two times the state minimum wage for full time employment. It’s a somewhat complicated analysis because it’s mostly a fact-specific analysis. But, the main criteria to consider is whether you are primarily engaged in exempt duties. The idea is this: If you are an employee working at a restaurant, or working in a job that pays you by the hour, and you don’t make more than twice the minimum wage, then you don’t really manage people, and you don’t exercise independent judgments; you basically have a supervisor or manager that tells you what to do. Then, you should be protected under the wage and hour laws in California. You should be able to get minimum wage pay and overtime pay, and other protections that are provided by the California labor code. If you believe that your employer has wrongfully classified you as an exempt employee, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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02 Mar Types of Employment Classification

There are three different types of employment classifications. Two of them fall within the employee classification and then the other one falls into the independent contractor classification. For now, let’s focus on the two classifications that fall under employee classification: Exempt and nonexempt employees. An exempt employee is an employee that is considered to be exempt from minimum wage and overtime requirements, whereas a non-exempt employee is covered or protected by the minimum wage and overtime pay requirements in the California labor code. If you have question about how your employer has classified you, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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