California Labor Law Frequently Asked Questions
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Below are some of the questions that I commonly get asked. If you have a question that is not on the list, you can email me your California labor law questions. If you are interested in getting information about labor laws, but are not interested in pursuing a claim to recover your money, you can visit Labor Law Talk. It is a website devoted to discussion of the various labor laws, and I frequently answer questions on that forum.
Nothing in the foregoing discussion is meant to be legal advice and does not serve to establish an attorney-client relationship. Any statements, on this page or elsewhere, are not guarantees of any outcome.
California Labor Law Overtime: I am paid a salary, I don't get paid overtime, right?
Wrong, wrong wrong. Even with all the information I put on this site, I still get asked this question. Unless you are exempt, you are required to be paid for all overtime worked. The vast majority of people that I represent are paid a salary and entitled to overtime.
California Labor Law Overtime: I am paid on commission, I don't get paid overtime, right?
Wrong. Many commissioned workers such as loan officers and stock brokers are entitled to overtime. If you are an outside salesperson, you are not entitled to overtime. If you work in retail sales. at least 1/2 of your total earnings come from commissions and you make at least 1 1/2 times the current minimum wage ($7.50/hr), then you are not entitled to overtime. If you work in sales other than retail -- such as a loan officer, stock brokers, you are entitled to overtime.
California Labor Law Overtime: Do I need an attorney for this? Can't I just file with the DLSE and get paid my money?
The DLSE can not enforce all of your rights to overtime pay and other labor violations. Please read this page before you file with the DLSE.
California Labor Law Overtime: I signed a statement saying I am exempt or that I am not entitled to overtime, I don't get paid overtime, right?
Wrong. It does not matter what you signed about being exempt or entitled to overtime. Your actual job duties will determine whether you are exempt. If your job duties and salary don't meet all the requirements for an exemption, you are entitled to overtime.
California Labor Law Overtime: How long does it take to get paid?
Generally, for labor commission hearings and for court cases, it takes approximately one year to complete. However, if you have a strong case, the company will have a definite interest in settling as soon as possible. The reason is that if you win in court, they have to pay your attorney fees. However, you should never expect a quick settlement.
California Labor Law Attorney: How much does it cost?
In most cases, there is no fee unless their is a recovery. In addition, my fee structure gives you an excellent alternative to both high priced attorneys and the DLSE. You can read about my fee structure here.
California Labor Law Attorney: I only have a small claim, do I need an attorney?
I can work with just about any size claim. Remember, if you win in court, they have to pay reasonable attorney fees. In addition, if the employer is violating the law with you, there is a good chance they are violating it with other people as well. Under the Private Attorney General statutes, you may be able to sue for civil penalties. These penalties can amount to large amounts of money even if your initial claim is very small.
California Labor Law Taxes: Do I have to pay taxes on any money I recover?
Yes, any money you recover will likely be treated as wages and is subject to taxation. Fortunately, under the Jobs Creation Act of 2004, you are usually allowed to deduct any attorney fees for suits involving discrimination or violations of wage laws. This law was enacted to encourage people with legitimate wage claims to pursue them.
California Labor Law : Can I file a complaint against my current employer?
You can file a complaint against your current employer, but you should consider this carefully. While it is against the law for an employer to retaliate against you, sometimes the best thing is just to have me talk to their attorney. If they know you have a legitimate case, they can either pay you overtime, or, as more frequently happens, simply have you stop working the overtime.
California Labor Law : Can I file a complaint against a former employer? How far back can I go?
Yes, you can file against a former employer. You can recover for any work performed in the last three years. It is important to note that the work must have been done in the last three years. If your work goes back more than three years, you are losing out on a part of your claim every day that you do not file. It is possible to go back over a period of four years in certain cases; however, there a certain restrictions on this.
California Labor Law Computer Professional: Why do you focus on the computer and IT industry?
I used to work as a computer programmer. The difficult part of overtime cases is determining exactly what you did for your job. You need an attorney that can explain this to a judge or jury so that they can understand it. If they understand what you did on your job, they will see that you are entitled to overtime. This is important because the gut reaction of most jurors is that a person making $100K a year is not entitled to overtime. If your attorney can't explain how the law works and how the facts of your particular job fit into that law, you will have a difficult time winning.
California Labor Law Overtime: Does mandatory overtime make jobs leave California?
California has had mandatory overtime for several decades. During this time, the tech industry was founded and grew to enormous size in California. The only time that the tech industry was actually losing jobs was during the "bubble burst." There are many things that caused the "bubble" to burst, but I am certain that California's overtime policy was not one of them.
What mandatory overtime does is forces companies to manage their people properly and to invest in tools and training so that people can get their work done in a reasonable amount of time. If you read any of the modern programming methodologies, such as Extreme Programming, they all insist that overtime is counter-productive. Thus, by forcing companies to pay for overtime, you are actually helping the tech industry by helping to curb such counter-productive factors.