Employment Categories

unscheduled work days and overtime

20 Mar Unscheduled Work Days and Overtime

People often ask about unscheduled work days and overtime. How do unscheduled work days and overtime work. Does working an unscheduled shift entitle you to overtime pay? The answer depends on your schedule. Unfortunately, the mere fact of working an unscheduled day does not, by itself, entitle you to overtime pay. But, if that unscheduled shift pushes you over a certain threshold, you will be entitled to overtime pay. California law considers any work more than 8 hours in a day to be overtime. So if you work 9 hours in a day, you're entitled to 1 hour of overtime pay. Likewise for more than 40 hours in a week. So if you work 41 hours in a week, you're entitled to 1 hour of overtime pay (more if you worked more than 8 hours on any day). 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're entitled to overtime pay for Saturday. This isn't because you worked a day you weren't scheduled tow work. Instead, it's because you worked over 40 hours in that week. 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've earned, contact the Khadder Law Firm today for a free consultation. For more, follow us on Twitter and Instagram....

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What's an independent contractor

12 Mar What’s an independent contractor?

What's an independent contractor? Put simply, someone that does work for an employer, but is not an employee. Unlike employees, who have an employment contract with their employers, independent contractors are not technically part of the company or organization for which they're doing work. Instead, they simply have a contract in which they agree to do certain work for that company or organization. Presumption against independent contractor status California law presumes that if you’re working for somebody, you are an employee. Accordingly, the employer bears the burden to prove that you are not an employee.  Even if your contract says you're an independent contractor, that doesn't mean you're properly classified as an independent contractor. Courts consider a number of factors in determining whether someone is an independent contractor or an employee. If most of the factors show someone is an employee, they are legally an employee, regardless of what the contract says. What's an independent contractor? The main factor is level of control Courts look at many factors, but level of control is the main factor. In other words, what's 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. For example, if you hire an electrician to rewire your house, you're probably not micromanaging their work. You tell them what you want done, but you don't tell them what tools to use or how to manage their time. This type of relationship is typically not employer-employee. Conversely, if a company hires someone and tells them when and where to be during work hours, what they should be doing, and how to do it, he's probably an employee. Nature and length of the relationship Some of the other factors to consider are whether the hiring entity can terminate the employment relationship at will. If they can, this suggests it's an employer-employee relationship. Also, whether the worker is engaging in an occupation or business that is distinct from the employer’s business or occupation. For example, say a law firm hires somebody to do IT work for it here and there. That is a distinct business from the employer (meaning the law firm’s business). This would probably favor characterizing the IT person as an independent contractor. Conversely, suppose you're a salesperson at a shoe store. Their business is selling shoes and your job is selling shoes. That your job is a core part of their business makes it more likely that you're an employee. Courts also consider the length of time over which someone performs the work. If you hire someone for a few hours of work, they're probably not an employee. But if you hire someone to do that same thing every day for a year, that's different. The worker's authority also comes up. If you can hire and fire others, then you're probably an employee. Another issue to consider is how the employer pays. Do they pay an hourly rate? A regularly salary? Or per job? For example, take that IT professional. If she's paid for each computer that she sets up, this might favor being characterized as an independent contractor. Conversely, if the law firm paid her a certain amount every month to run their IT, that would make it more likely that she is an employee. Type of work and skill involved There's also the worker's skill. If you’re an IT professional and you’re coming in and setting up a computer for a business you're likely an independent contractor. That's because you're 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. Also, 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. If a contract says you're independent contract, it doesn't necessarily mean you are. But courts will consider that. 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 the Khadder Law Firm today for a free initial consultation. For more, follow us on Twitter and Instagram....

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What does "exempt" mean

06 Mar What’s an Exempt Employee?

What's an exempt employee? It simply means that an employee is exempt from certain wage and hour laws. We've written a few posts about the difference between employees and independent contractors. But there are also two kinds of employees: exempt and non-exempt. What does it mean for an employee to be exempt? Both federal and California law have lots of laws governing employment. For example, laws that set a minimum wage or require overtime pay. But some of these laws don't apply to all employees. For instance, the law doesn't require overtime pay for some salaried employees. These employees are exempt from the overtime law. How do I know if I'm exempt? California law presumes that an employee is non-exempt. Accordingly, the employer bears the burden to show that an employee is exempt. To do so, the employer must show 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. Additionally, California law is more protective than federal law on this issue. California wage and hour laws address several categories of exempt employees. Employees must satisfy certain criteria to fall within each exemption. All of them use what is called the “primarily engaged in” test. Under this test, your employer may consider you an exempt employee if you're primarily engaged in work that qualifies for exemption. You're primarily engaged in exempt work if more than 50% of the work that you do falls within the exemption. So if more than 50% of your work is of the type that qualifies for a specific exemption, your employer can consider you exempt. Types of exemptions 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. Under this rule, 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 at least twice the state minimum wage for full time employment. 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 - California wage and hour laws should protect you. You should be able to get minimum wage pay and overtime pay, and other protections under the California labor code. There are other exemptions as well. If you believe that your employer has wrongfully classified you as an exempt employee, contact the Khadder Law Firm today for a free initial consultation. For more, follow us on Twitter and Instagram....

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Different employment classifications

02 Mar Different Employment Classifications

There are three different employment classifications. Two of them fall within the employee classification. The other one falls into the independent contractor classification. Different employment classifications: Two types of employees The first are a exempt employees. An exempt employee is an employee that the labor code exempts from minimum wage and overtime requirements. The labor code sets out certain requirements to be exempt. Employees that meet those requirements are exempt. The second are non-exempt employees. Under the labor code, minimum wage and overtime pay requirements apply to non-exempt employees. This is the default classification for employees. Therefore, courts presume an employee is non-exempt unless the employer can affirmatively show they fit into one of the exempt categories. Non-employee classification: Independent contractors Lastly, there are independent contractors. Independent contractors are not employees. Any person an employer pays for work who is not an employee, is an independent contractor. Much of state and federal labor and employment law does not apply to independent contractors. For example, there is no minimum wage for independent contractors. Furthermore, employers need not provide benefits to independent contractors. But California law presumes employee status, so employers must prove someone is eligible to be an independent contractor if it comes before a court. These are the different employment classifications. If you have a job, you fall into one of these three categories. Unfortunately, employers regularly misclassify workers to save money. For example, your employer may classify you as exempt to avoid paying you overtime. But the law is independent of your employment agreement. As such, the law may still consider you non-exempt, even if your employer treats you as exempt. Instead, it simply means that your employer has misclassified you. Fortunately, the law provides remedies to victims of misclassification. Therefore, you should not assume that you are stuck with your classification even if you believe it is wrong. If you have question about how your employer has classified you, contact the Khadder Law Firm today for a free initial consultation. For more, follow us on Twitter and Instagram. And like us on Facebook....

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12 Dec What if I’m afraid of making the overtime claim because I might lose my job?

This is a legitimate concern that many employees have, and unfortunately, there is no perfect protection against an employee who seeks to enforce their rights to overtime and other pay laws. The good news is that California law prohibits retaliation against an employee who asserts their rights under the wage and hour laws. California labor code 1102.5 (see below) is a particularly powerful tool for going after employers that retaliate against you for asserting your rights under the labor code. There are other provisions in the labor code that also prohibit retaliation, and provide that the person can sue on those claims, but labor code section 1102.5 is the most commonly used. In addition, because Section 1102.5 falls within the California labor code, an employee may also be able to sue under the Private Attorney General Act and recover attorney’s fees for any retaliation that he or she experienced because they sue to enforce their rights to overtime pay. < California Labor Code 1102.5 > Labor Code - LAB DIVISION 2. EMPLOYMENT REGULATION AND SUPERVISION [200 - 2699.5]  ( Division 2 enacted by Stats. 1937, Ch. 90. ) PART 3. PRIVILEGES AND IMMUNITIES [920 - 1138.5]  ( Part 3 enacted by Stats. 1937, Ch. 90. ) CHAPTER 5. Political Affiliations [1101 - 1106]  ( Chapter 5 enacted by Stats. 1937, Ch. 90. ) 1102.5. (a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. (b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. (c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. (d) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment. (e) A report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b). (f) In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this section. (g) This section does not apply to rules, regulations, or policies that implement, or to actions by employers against employees who violate, the confidentiality of the lawyer-client privilege of Article 3 (commencing with Section 950) of, or the physician-patient privilege of Article 6 (commencing with Section 990) of, Chapter 4 of Division 8 of the Evidence Code, or trade secret information. (h) An employer, or a person acting on behalf of the employer, shall not retaliate against an employee because the employee is a family member of a person who has, or is perceived to have, engaged in any acts protected by this section. (i) For purposes of this section, “employer” or “a person acting on behalf of the employer” includes, but is not limited to, a client employer as defined in paragraph (1) of subdivision (a) of Section 2810.3 and an employer listed in subdivision (b) of Section 6400. (Amended by Stats. 2015, Ch. 792, Sec. 2. Effective January 1, 2016.) If your employer has retaliated against you for making an overtime claim, contact an employment lawyer today at the Khadder Law Firm for a free initial consultation....

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