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24 Mar Will the court will award attorney’s fees in an unpaid overtime case if an employer is in clear violation?

It is complicated because many violations have their own rules about being able to get attorney fees. Let’s take overtime, for instance: A benefit of California law and overtime claims is that it has a one-way fee shifting provision. If you’re an employee who is not getting paid overtime and you sue and win, you may be able to get attorney fees against your employer. If you lose and don’t get anything, your employer cannot go after you for attorney fees. The idea behind the one-way fee shifting provision is that there is a public policy in place that employees should get paid for the work that they have performed, and they should get paid the amount that the law requires workers to be paid for the work that they’ve performed. If the employer could go after them for attorney fees, then employees would be scared to hold their employers accountable. There is also something called the Private Attorney General Act or PAGA. PAGA basically deputizes citizens to recover penalties on behalf of the state of California. If you win, you can keep 75% of the penalties, and you pay the state 25% of the penalties that you recover. It covers may types of claim under the labor code including overtime and minimum wage. In any type of claim that may not provide for attorney’s fees on its’ own, the Private Attorney General Act would step in and entitle you to attorney fees. If you believe that your employer has violated the California Labor Code, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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20 Mar What if I can’t afford a lawyer to pursue my unpaid overtime claim?

The thing about wage and hour claims is sometimes it just doesn’t make economic sense for a lawyer to take on a case, but there is still hope because there are one of two ways you can still vindicate your rights if your claim is not that big. The first, is that you can go directly to the California Labor Commission to file a wage claim with them. It’s an expedited process, in other words, it’s usually faster than going to court. It doesn’t cost you anything, and you don’t need a lawyer. The other option where a lawyer would be more likely to be involved is if you are presenting a potential class action. When there is a class action claim for overtime of minimum wage or other wage and hour issues, then lawyers have much bigger economic incentive to get involved, and so that would be a way to go vindicate your wage and hour rights. Another possible avenue is if you have a case against your employer for discrimination, harassment or retaliation, and along with that the employer happens to not be paying you overtime. In that case, the lawyer would probably be more likely to get involved because the harassment, retaliation or discrimination claim would provide an incentive for the lawyer to take on the case. Then, while they’re at it, they’ll just add on the wage and hour violation claims as well. If you believe that your employer has violated the wage and hour laws, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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20 Mar Unscheduled/On-Call Work Days

What if they want me to come in on Saturday? Is that considered overtime, or if it’s still within my 40 hours is that okay? California law considers any work more than 8 hours in a day or more than 40 hours in a week to be overtime. If you have worked 40 hours, Monday through Friday, and then you are required to come in on Saturday, and you are a non-exempt employee, then you would be entitled to overtime pay for that work that you perform on a Saturday. But, if you haven’t worked 40 hours in week, from Monday through Friday, and you have to come in on a Saturday, then as long as it’s under 8  hours or has not exceeded 40 hours in a week, total, then you would just be entitled to your standard pay. If your employer has failed to pay you overtime pay that you have earned, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation.  ...

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17 Mar Rest Periods and Meal Breaks at Work

What rest periods and meal breaks am I entitled to under California law? If you are a nonexempt employee, and work a standard 8-hour day, you are entitled to meal and rest breaks. For every four hours of work, you are entitled to a ten-minute paid rest break, and if you work a full 8-hour day, at some point you are also entitled to an unpaid, 30-minute meal break. In a typical 8-hour day, you would be entitled to two paid rest breaks of ten minutes each, and then also one meal break for 30 minutes, which is unpaid. If your employer has failed to provide you with meal or rest breaks, 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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