Employee wages are set by the employer but must meet the federal or state minimum wage. Employers must withhold, report, and pay employment taxes.
California Labor Code section 515.6 exempts certain licensed physicians and surgeons from overtime compensation if they receive set minimum hourly compensation. Effective January 1, 2020, the California Department of Industrial Relations is increasing the minimum from $82.72 to $84.79 per hour, effective January 1, 2020. To avoid California’s requirements to pay overtime premium rates after eight hours worked in a day or 40 in a week, employers will need to pay eligible physicians or surgeons that minimum hourly rate, keeping accurate track of hours worked. Under Labor Code section 515.6, a doctor is exempt-from-overtime only if he or she is a licensed physician or surgeon “primarily engaged” (more than 50% of the time) in duties that require that licensure. California Business & Professions Code section 2052 specifies such duties, requiring a medical license for anyone who “diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person.” Employers relying on this exemption will of course need to implement this rate change by the January 1 deadline. Physicians and surgeons paid on a lump sum salary (whether weekly or otherwise) will not qualify for this exemption but may otherwise be excused under the administrative, executive, or professional overtime exemptions. For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin. Cindy Bamforth December 5, 2019
Missouri statutes protect payments of outstanding commissions. A Missouri statute specifically addresses failure to pay sales representative commissions, and provides liability to an employer in a civil action for actual damages if that employer fails to pay all outstanding commissions. Per the commissions’ statute, when the contract between a sales representative and a principal is terminated, all commissions then due shall be paid within thirty days of such termination. Any and all commissions which become due after the date of such termination shall be paid within thirty days of becoming due. The statute further provides: “Any principal who fails to timely pay the sales representative commissions earned by such sales representative shall be liable to the sales representative in a civil action for the actual damages sustained by the sales representative and an additional amount as if the sales representative were still earning commissions calculated on an annualized pro rata basis from the date of termination to the date of payment." That same statute also allows employees who were not paid their commissions additional damages including attorney fees and costs. You should consult a lawyer to undertsand how the rules may apply to you. The subject of commisions can be tricky. If you believe that commisions you earned were unfairly withheld, you should consult a lawyer to understand how the rules may apply to you.
Protect Your Rights The Fair Labor Standards Act (FLSA) and Florida labor law require all employers in Florida to visibly display an approved Florida minimum wage poster to ensure that all employees are informed of existing and updated federal and Florida labor law and overtime regulations. Employees are entitled to be paid the higher state minimum wage if it exceeds the federal rate. The Florida minimum wage will always prevail over the federal rate unless the federal minimum wage is higher than the state rate. The only time that minimum wage does not increase, is if the CPI is negative, indicating deflation. An employer may not retaliate against an employee for exercising their right to ensure they are receiving the minimum wage. Employee Rights Protected by the State Constitution 1. Filing a complaint regarding an employer’s alleged noncompliance with lawful minimum wage requirements. 2. Notifying any person about an employer’s alleged noncompliance with lawful minimum wage requirements. 3. Notifying any person of their potential rights under Section 24, Article X of the State Constitution and Section 448.10, Florida Statutes and assisting them in asserting such rights. Civil Action Employers are subject to a $1,000 fine if found liable for violating minimum wage requirements. If at any point in time you have not received the lawful minimum wage, you must first notify your employer and allow 15 days to resolve any claims for unpaid wages. If claims are not resolved during this 15-day period, you may decide to proceed with a civil action against your employer to recover back wages, adjustments, damages and attorney fees. The Department of Labor conducts investigations as a part of its enforcement of the FLSA. All complaints are confidential, including your name and the essence of your complaint. The only exception to this is if it’s required, with your permission, to reveal your identity, in order to pursue a claim. Any supplementary documentation, including copies of pay stubs, records of worked hours, or any information regarding the pay practices set by your employer will aid in this process. The services the Department of Labor provides are confidential, whether or not you are documented. Lastly, your employer cannot terminate or discriminate against you for filing a complaint with the Department of Labor. Representation By Counsel We recommend having a consultation with a qualified labor and employment lawyer before you make a decision to file a complaint with the Department of Labor, as a lawyer may recommend an approach to attempt to settle your claim prior to filing a complaint, or help you file the complaint directly with the DOL or in State/ Federal Court. A qualified labor and employment lawyer can also explain to you in detail your statute of limitations deadline and any other important associated issues you should consider.
Premium Payments You are a California employer and an employee misses her meal period. Now what? California law dictates that an automatic “premium” payment equal to one hour at this employee’s regular rate must be added to that workday. (Courts generally hold that premium payments can be assessed up to twice in a single workday). However, before this decision there was confusion as to what the “regular rate” actually is when employee’s are paid, for example, multiple hourly rates or if they are paid commissions in addition to an hourly wage. A recent California court case clarified this confusion. This decision simplifies the calculation for California employers in that the premium payment is equal to one hour at the employee’s base hourly wage, NOT the regular rate of pay. Plaintiff attorneys have often argued that the regular rate is the one used to calculate an employee’s overtime rate. This is true if adhering to Labor Code Section 510(a), which defines the regular rate of pay as an employee’s base rate of compensation plus any adjustments to that rate. Therefore, an employee’s regular rate of pay may change each pay period. Calculating payment of meal periods, rest breaks, and recovery period premiums at the regular rate of pay would be incredibly difficult if this were to be employed. The court therefore rejected this framework to eliminate the headache for employers. Neutral Rounding Systems The court of appeal also upheld the trial court’s summary judgment concerning the employer’s neutral rounding system (i.e., an employee works five hours and 29 minutes, and is therefore paid for five and a half hours, and vice versa). The net effect of a rounding policy is not enough to systematically undercompensate employees, thus making the policy of rounding to the nearest increment lawful. This is because rounding causes some employees to be overcompensated and undercompensated in each given time period, which will average out in the long run. These new developments are good news for California employers. In order to ensure compliance with these decisions regarding premium payment practices, employers should review their policies and consult with legal counsel.
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