My former employer has a staff of less than 6 people working but make over 50k a month in revenue. They made me work 8 hours over night lets say from 10:00 PM to 6:00AM and would have me come back to work the same day at 3:00 PM to 10:00 PM. I believe this still counts as one day but they would only pay us regular pay instead of overtime. Also they would make us work 8 hours a day and would not allow us to leave the office for lunch, they made us sit on our desk and eat our lunch.... Now they have wrongfully terminated me and I am wondering if its even worth sueing them and if any lawyer would really take a case like this since its not a multi million dollar corporation? Thank you
You raise several issues and ask some important questions.
The first issue is whether you were a properly characterized exempt employee. If so you had no right to be paid overtime or to meal or rest periods. However, if you were a non-exempt employee, there are several claims available to you.
Overtime is calculated by how many hours you work in a workday, not in a shift. The default workday is midnight to midnight. If you worked the shifts you indicated, you would work 6 hours in the early morning and another 7 hours in the evening, meaning you worked 13 hours in one workday. Assuming no lunch, that would mean you would get paid 8 hours regular rate, 4 hours at time-and-a-half OT rate, and 1 hour of double-time OT rate. Depending on how long you were denied OT premiums and depending on your regular rate, the value of that claim can become fairly substantial.
Not allowing you to leave the premises for lunch will likely result in a claim that you were not provided with a legally acceptable meal period. If you are not an exempt employee, then your employer has an obligation to provide you with a reasonable opportunity to take a ten-minute, on-the-clock, uninterrupted, duty-free rest period for every four hours (or major portion thereof) that you work. As a non-exempt employee you also must be given a reasonable opportunity to take a thirty-minute, off-the-clock, uninterrupted and duty-free meal period on any workday when you work more than 5 hours.
If you are non-exempt and you are not given the reasonable opportunity to take the rest periods described above, you are entitled to a penalty wage in the amount of one hour of pay at your regular rate for every day you were denied at least on such rest period. You are entitled to another hour of pay for every day you were denied the meal period as described.
You then ask the wise question that we cannot answer in a vacuum - Is it worth it to pursue? It does you no good to get a judgment that is uncollectable. It is possible that a case of this sort can overwhelm a company and send it into oblivion, especially if you make certain claims under the Private Attorney
General Act seeking penalties for the way the company treats all of its employees. Size of the employer, desire to stay in business and many other factors can come into play in that decision. Really that question cannot be answered by an attorney until you get confidential specific advice following a complete download of all the information the attorney would need to assist with that decision.
Therefore at this point your prudent move would be to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.
Most employment attorneys who practice this area of law offer a free or low-charge consultation and then if the matter has merit and sufficient value, they work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.
Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
You should contact an experienced labor and employment law attorney about any possible claims you have. Most attorneys offer a free consultation. During the consultation, you should be able to provide detailed information about employment practices, copies of pay stubs, agreements, employee handbook, other policies. You should also have some idea of the number of times and dates of suspected violations (for example: missed meal periods, break periods, overtime). There are lawyers that specialize in these types of violations and if you suspect that violations occurred not just for you but across the work-force, then an attorney MAY be able to leverage your claim by filing a class action or other representative claim.
The above is my informational response based on limited information provided– this is NOT legal advice. Neither the individual posting the question nor any reader has retained me as an attorney. I am not your legal representative nor am I responsible for any action you may take (or omit to take) in reliance on my response. No attorney-client or confidential relationship exists or will be formed based on the question and my response. Consult an attorney that is qualified and and licensed to practice law in your jurisdiction to obtain legal advice specific to your facts and circumstance. Attorney Jacklin Rad is licensed to practice law in the State of California.
Assuming you are a non-exempt (hourly) employee, California law requires employers to pay overtime premiums for all hours worked in excess of 8 hours in a workday and 40 hours in a workweek. The issue may be, when does the workday start? Employers may designate a time for the start of the workday. It is not required to be 12:01 A.M. although that is often the default start time when no other time has been designated. In theory, it could also be 12:01 P.M., which would mean that in the example you gave, you may not have worked in excess of 8 hours in the workday. However, when a start to the workday has been designated, the employer cannot change it to avoid having to pay overtime. You need to ask your employer what time the workday starts for this company.
With regard to lunches, employers are legally required to provide non-exempt employees with at least a 30 minute uninterrupted meal period for each 5 hour work period. Uninterrupted means the employee must be free to leave the workplace and free of all work duties during that break. Each violation of this rule may result in the equivalent of one hour's pay. The employer is also required to provide a 10 minute rest break for each 4 hour work period.
Many employment law attorneys represent employees who work for small companies. You need to reach out to several and find out who may be interested in evaluating the merits of a potential case.
They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.
Employers determine when their workdays and workweeks begin. If you were a nonexempt employee who, within the past 4 years, worked more than 8 hours in a workday OR over 40 hours in a workweek (don't count meal period) and you did not receive overtime, call an employment law attorney to discuss. Also, if during the past 4 years, you were a nonexempt employee who did not have the "opportunity" to take a meal period and did not receive one hour of pay for it, call to discuss. Calculate the days/hours you worked in which you did not receive OT, the number of hours of OT worked, amounts you were paid, your hourly rate, etc. (basically, get the facts together) and call an employment law attorney to discuss. OT cases include interest, up to 30 day's extra pay and the law requires your former employer to pay your attorneys' fees. Find contact info on Avvo.com.
If you are a nonexempt employees, and your workday started at 10 PM, then you would be entitled to overtime in the example you stated. Furthermore, even if you only worked a normal eight hour day, you would also be entitled to overtime for having to work through lunch. You would also be entitled to one hour of regular pay for every working meal and one hour of regular pay for every day in which you were not allowed rest breaks.
So, the easy answer to your question is that it is definitely worth it to sue your former employer for overtime, premium pay for meal and rest breaks, interest, paystub penalties, and attorneys fees. You should contact an employment attorney to discuss your case in more detail. Most of us provide a free initial consultation.
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