We just found out that a large group of former employees were not paid overtime compensation during years 2008 09,10,11 and 2012. Some former employees don't have any records of paystubs that can prove we didn't get overtime compensation. We ask the former employer and he said that the secretary messed up with them and some got lost. What can we do to ask the former employer to produce those record and how far can we go back? The real problem is when we all punched in and out in a simple notebook, and the book was actually controlled and supervised by a third party (joint employer). Can we legally ask the third party to produce any records?
Employment / Labor Attorney
You should consult in person with an employment lawyer. It sounds like you may have a collective action for unpaid overtime under the Fair Labor Standards Act. There are time deadlines that can impact how much you can recover. I urge you not to take this chore on by yourself without an attorney. Your attorney will know how to go after the records. Good luck.
Employment / Labor Attorney
I agree with Mr. Jackson that this kind of case requires an experienced plaintiffs employment attorney. However, California law is far better than the federal law Mr. Jackson refers to for wage and hour cases like this. Nearly all California attorneys will tell you that filling a case under the federal law instead of California law will result in a far lower recovery.
Most attorneys will handle a case like this on a contingency basis, which means the clients pay nothing up front for attorney's fees, and the attorney is paid at the end of the case out of any recovery. Depending on the number of employees involved, the case could be handled as individual cases; one case with multiple plaintiffs; or as a class action.
Potentially, you can recover wages going back as far as four years if the case can be pursued under an unfair competition (Business and Professions Code section 17200 et seq.) theory or as breach of a written contract contract, both of which have a four year statute of limitation (deadline, or time limit).
There are ways to get records from a third party after the legal process has started. Your attorney should send an spoliation letter to the employer and the third party immediately, as soon as you retain representation. This can help get the other party to preserve the records, or face liability if it does not.
Under California law, an employer is required to maintain accurate records of employee work hours. Section 226 of the California Labor Code requires employers to maintain time records and wage withholding information for at least three years for each employee. Otherwise, the employer may be required to pay fines of up to $4,000.00, plus attorney fees and costs.
Also, if the employer does not maintain these records, the employees are legally entitled to reconstruct their work hours to the best of their ability. The employer can rebut the reconstructed records, but will have a very hard time doing so if it has not retained its own records. This could have a very favorable result for the employees.
The California Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. While you can pursue an unpaid overtime claim via the DLSE, the DLSE will not be able to go after the fourth year of unpaid overtime if you have to use the unfair competition theory. If you choose to give up that fourth year of overtime, the DLSE can handle your case without charge. It may take two years or so to get through the DLSE process due to budget cuts and understaffing. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm.
Also, an employer that violates one wage and hour law may have violated other wage and hour laws, such as those requiring breaks. The employees may be entitled to other wages and penalties which they are not yet aware of. So again, I urge you to contact an experienced plaintiffs employment attorney. I would be glad to refer you to competent attorneys I know in your area, if you would like to contact me.
Otherwise, to find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.
Marilynn Mika Spencer
Marilynn Mika Spencer
The Spencer Law Firm
2727 Camino del Rio South, Suite 140
San Diego, CA 92108
(619) 233-1313 telephone // (619) 296-1313 facsimile
*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***