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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


  1. 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.


  2. 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.


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


  4. 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. ***


  5. 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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