The McMillan Law Firm represents both employers and employees in disputes arising out of the employment relationship. Whether you are an employer defending against a wrongful termination or sexual harassment claim; an employee who has not been paid at least the minimum wage or overtime or has not been allowed to take lunch breaks; or your employer wrongfully pays you as a “1099” employee instead of as a “W-2” employee, we can help you resolve these problems and others arising out of the employer-employee relationship.
At The McMillan Law Firm, APC, I represent employees in a wide variety of issues involving employment law, including:
- Breaches of employment contract
- Wage and hour law violations
- Failure to reimburse for employee expenses
Breaches Of Employment Contract
This type of case often arises when an employee is lured away by the prospective employer from a competing business. The prospective employer makes grandiose promises, offers ownership in the company. Then, the employee quits his or her existing job and goes to work for new employer. The new employer taps out the employee’s specialized knowledge about the former employer’s business. Then, when all the employee’s useful knowledge has been divulged, the employee is terminated and the promises are disclaimed.
The employee then tries to find an attorney, only to be told by most that the employee doesn’t have a case, or it is too difficult to prove, and that next time they should get the promises “in writing.”
That is where I come in. I have developed expertise in proving the existence and terms of oral contracts for employment before a jury. While you and I are proving those oral contracts, we also can demonstrate wage and hour violations.
Wage And Hour Violations
Under California law, employers must pay workers for overtime hours unless the employees are “exempt.” “Exempt” employees are managers, professionals, and some computer professionals. However, employers sometimes improperly designate the employee as “exempt.” First, to be considered “exempt” a manager or assistant manager must earn two times the minimum wage (at least $2,600 gross per month) to qualify for an exemption from overtime pay.
Also, managers or assistant managers can lose their exempt status if more than 50% of the work they perform on a daily basis is work performed by non-exempt workers. For example, an assistant manager in a retail clothing store who spends more than 50% of his or her time helping customers or running a cash register – the same work performed by salespeople – would be entitled to receive overtime pay for all hours greater than eight in any workday and all hours in excess of 40 per week.
Regardless of classification, many companies simply do not pay 1.5 times an employee’s regular rate of pay for overtime work, which is a clear violation of the law. For example, some sales organizations attempt to avoid the payment of overtime pay by claiming that the employee is paid on a commission. However, if an employee is paid on a commission, piece rate, or another variable basis, the employee must be paid both minimum wage and overtime.
Similarly, restaurants sometimes fail to pay overtime to their servers. Restaurants may not justify a failure to pay overtime by claiming that the server pays tips. Tips can not be used to offset minimum wages or overtime.
Some computer workers fall under a special rule and are exempt from overtime so long as they are paid at least $49.77 per hour.
In addition, companies that force workers in California to work seven days in a row must pay workers overtime wages for all work performed on the seventh day.
Overtime wages are 1.5 times the employee’s regular rate of pay. Failure to provide breaks, pay overtime wages due, can result in stiff penalties, such a double damages and one hour of pay at the employees’ regular rate for each day that the employer failed to provide a lunch break or a meal break, plus attorneys’ fees and costs.
Meal And Rest Breaks
Employers must provide meal periods of 30 minutes every five hours and/or provide break times of no less than ten minutes every four hours. The failure to provide a break entitles the employee to an extra hour of pay as a penalty. Similarly, the failure to provide a duty-free meal break of at least thirty minutes exposes the employer to an additional one hour penalty.
Tender Of Wages
An employer must tender pay at a consistent place and time. The tender of the pay must be made by an instrument, such as a check that is immediately negotiable. The employee must be able to cash the check without a charge at the bank.
Discrimination And Harassment
Discrimination and harassment in the workplace are serious offenses and need to be dealt with promptly. Any type of discrimination or harassment in the workplace whether it is concerning race, sex, sexual identity, religion, disability or age should never be overlooked or taken lightly. Discrimination of any kind is in violation of Title VII of the 1964 Civil Rights Act and is important to recognize. No individual should be made to suffer under such limitations especially if they are imposed upon an employee. These are some characteristics that one should be made aware of:
- Derogatory references concerning a person’s race, sex, sexual identity, religion, disability or age
- Unwanted sexual advances by an employer or another employee
- The exchange of sexual favors for work-related concerns
- Depriving an individual of compensation or other opportunities because of race, sex, sexual identity, religion, disability or age
- Making work related projects intentionally cumbersome because of race, sex, sexual identity, religion, disability or age
Don’t Delay; Your Time For Suing Is Passing
An employee may bring a suit for Labor Code violations within three years after the violation. Unpaid wages and reimbursable expenses may be sought under the unfair competition statutes within four years after performing the work or incurring the expense.
I am interested in discussing your case, and potentially taking it on a contingency fee basis, if any of the following has happened to you:
- You were not paid overtime for time over 40 per week or eight per day.
- You were paid less than minimum wage, $7.50 per hour.
- You worked shifts over five hours, but not given a 30-minute meal break.
- You worked shifts over four hours, but not given a 10-minute rest break.
- You were required to attend meetings/training without pay.
- You were required to work “off the clock.”
- You were improperly paid salary but worked overtime.
- Your employer made deductions from your wages for lost sales, breakage, etc.
- You were not paid your wages at the time of discharge, you were paid late, you were paid with a bad check or were required to pay a fee to cash your check.