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I was hired for a PT position in retail in CA (under 30hrs) often I work 30-40 w/no extra $ or benefits. Is that legal!

Danville, CA |

I was hired as PT sales help & am now a supervisor. I got payed $3/hr more, but am now working 40hrs because the manager has us working as a skeleton crew. IDM helping out but I did NOT sign up for full time but am working full time w/no benefits

Attorney Answers 5

Posted

Whether you are entitled to extra money for extra hours depends on your compensation structure. If you are paid by the hour, you should be receiving extra money for extra time.If you are on salary, you receive the same amount whether you work zero or forty hours a week.

Whether you are entitled to health care benefits depends on the terms of your employer's benefits package. Sick pay and vacation pay depend on your employer's agreement with you.

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Posted

I wonder what is your question . . . . You've got a job in an economy where many are out of a job. You have received a pay increase of $3 an hour and put on full time 40 hours. What are you complaining about? Too much work? Didn't "sing up for full time"? I wonder again, just what is your question? If it is about benefits, you would need to be more specific about that and reveal just what benefits you are talking about and whether they provide those benefits to other workers, or whether nobody gets the "benefits" of which you speak.

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Posted

Unless they are not paying you for overtime, I do not see a claim which you could bring.

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2 comments

Asker

Posted

I apologize if I was unclear. I guess what I'm trying to figure out is: I work as many hours (some weeks more) as the full time salaried employees who receive medical benefits, yet I do not receive any more than my hourly pay for any hours over the 30 that are considered PT. I do a great job & am a team player. I'm happy to help out when needed but I feel I'm being taken advantage of.

Herbert J Tan

Herbert J Tan

Posted

Even though you were hired PT but are performing FT hours does not give rise to an enforceable right to medical benefits.

Posted

The issue is whether you are exempt from (not entitled to) overtime or not. An employee can only be exempt from overtime based on the what the law says, not based on what your employer decides. The law assumes all employees are entitled to overtime, so the employer has to prove that someone is not. An incomplete summary of the three main categories of employees who are exempt are:

EXECUTIVE/MANAGERIAL: The employee: has duties involving management of the full enterprise or a recognized division; customarily directs two or more employees; can hire or fire, or whose recommendations are given weight; regularly exercises independent judgment; earns a salary of $2,773.33 per month or more; and does all of this at least 51 per cent of the time.

ADMINISTRATIVE: The employee: performs office or non-manual work that is directly related to management policies or business operations OR performs administrative functions in a school in work directly related to instruction; regularly exercises independent judgment; regularly and directly assists an owner or bona fide executive or administrator; performs specialized or technical work under only general supervision; executes special assignments; earns a salary of $2,773.33 per month or more; and does all of this at least 51 per cent of the time.

PROFESSIONAL: The employee: is licensed to practice law, medicine, dentistry, optometry, architecture, engineering, teaching or accounting; works in (a) a learned or artistic professions that requires advanced knowledge in a field or science acquired by specialized instruction, or (b) works in a recognized artistic field, or (c) works in an intellectual capacity;and does all of this at least 51 per cent of the time.

There are some additional exemptions that pertain to specific jobs, such as computer software professionals.

If you are mostly doing sales work and spending less than 50 per cent of your time in exempt duties, then you must be paid by the hour for all time worked. If you are not, then you may have a valid wage claim. See below.

Regarding benefits: There is no law that requires an employer in the private sector to provide benefits to employees. Generally, an employer can decide whether to offer benefits, what benefits to offer, and to whom the employer offers them. There are restrictions that prevent an employer from limiting benefits to employees BECAUSE OF their race, religion, disability, sex, age (40 and over), national origin, pregnancy, genetic history, and in some states, because of their sexual orientation or marital status.

Also, an employer is free to define "full-time" and "part-time" as it wishes. There are no laws in the private sector that designate any particular number of hours as full-time or part-time. The only requirement is that the employer must pay employees for all time worked.

Given this, the employer can define employees as part-time even if they work the same number of hours as full-time, and limit benefits to those employee the employer has defined as full-time.

If, however, there is a company policy that defines all employees who work a certain number of hours as full-time, you may be eligible for that classification. But language can be tricky. For example, a policy that says "All full-time employees work 40 hours per week" is not the same as "All employees who work 40 hours per week are full-time."

Also, if your job is covered by a contract between a union and the employer, or if you have an individual contract, the employer must comply with the terms of that contract.

(continued in Comment below)

twitter.com/MikaSpencer *** 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. ***

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Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

(continued from Answer above) Even if your employer violated the law, there may be many reasons not to do anything about it just now. Taking action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about unlawful pay practices, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking retaliatory action in the first place. You may find yourself out of a job in this terrible economy and unable to find a replacement. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation. There is an alternative, though it involves waiting. California law requires an employer to pay an employee all accrued wages, vacation, PTO, and ascertainable commissions AT THE TIME the employer ends the employment relationship. If the employee quits without advance notice, the employer has 72 hours to make this payment. If the employer does not pay as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit. So when your employment with this employer ends you can PROBABLY pursue a wage claim or lawsuit if you are not paid everything as required. Your best bet is always to consult one or more experienced employment law attorneys with whom you can discuss the details of your situation and go over your time limits. Please do not rely on general information from a public site such as Avvo. Keep track of all the information related to this situation. Write down the details using names, dates, location, witnesses, times of day – as much as you can. Save copies of any documents. Keep all this at home, not at work, to make sure it remains private. For every work day, keep a log of all your work time, including the time you start working, the time you stop working, and the start and stop times of any breaks (meal or rest). Time spent walking to or from a time clock is considered work time, not break time. Many people find it helpful to keep this information on a calendar. For every work day, keep track of the actual work duties you perform and how much time you spend on each duty. This will be important to prove whether you are entitled to overtime. When you are ready: The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm.

Posted

I suggest you obtain a copy of the summary benefit plan of the employer-sponsored benefits. You can get this directly from the health insurance company.

You may also want to look at the employee handbook to determine whether part-time or full-time is defined.

The terms of the health insurance plan will govern when you are entitled to benefits.

Best,

David Mallen

David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.

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