Sunday, August 23, 2009

Are Employees Entitled to Overtime and Breaks?

In the struggling California economy, many workers are feeling the pressures of reduced hours, stagnant wages and limited job opportunities. In an effort to cope with the new economic realities, employers, also, find themselves taking measures to save money and reduce their bottom line. In many industries, employers are requiring employees to take mandatory pay cuts or take several days of unpaid furlough time, all to reduce costs.

When in line with the requirements California law, these cost-saving measures are perfectly acceptable, if often difficult for individual employees. Sometimes, however, in their effort to save money, employers institute polices that unfairly rob employees of wages and rights owed to them. Unfortunately, employees are too often unaware of their rights under California law.

Overtime Pay

Most people who have worked jobs that pay hourly wages are familiar with the concept of overtime pay: for any time worked over eight hours in a day or 40 hours in a week, hourly employees are generally entitled to one-and-a-half times their regular rate of pay. Sometimes, however, employers will take actions to deny employees overtime pay, such as forcing the employees to work off of the clock or forcing them to sign incorrect time cards. These sorts of violations are often obvious, and employees who are denied overtime pay through these (or other) methods are entitled to their full wages owed plus, in some circumstances, court costs and attorneys' fees.

There are also other, less obvious situations in which employers incorrectly deny overtime pay to their employees. In California and elsewhere, employees can be divided into two categories: exempt and non-exempt. The determination of whether a particular employee is exempt or non-exempt is established by what job the employee does, how he or she is paid and how much pay he or she receives. Many (but not all) salaried employees are considered exempt, while most (but not all) hourly employees are non-exempt.

Problems arise when employers misclassify non-exempt workers as exempt. For example, California has an exception for certain "white collar" employees — including executive, administrative, professional and outside sales employees. Employees in these positions are not entitled to overtime pay. Some employers, intentionally or otherwise, will misclassify an employee or group of employees as exempt, and thereby save money by not paying these employees overtime. Unfortunately, the overtime pay laws can be confusing. If you believe you may have been improperly denied overtime pay, an experienced employment law attorney should be able to help you determine your rights and options.

Mandatory Meal Breaks

The distinction between exempt and non-exempt is also important in other contexts. California law specifically sets forth certain breaks that must be provided to non-exempt employees. For instance, non-exempt employees who work shifts of five hours or more must receive a 30-minute meal period during their shift. If the shift is 10 hours or longer, the employee is entitled to two 30-minute meal breaks. During these meal breaks, the employee generally must be entirely free from work duties; in fact, hourly employees are usually required to "clock out" during meal breaks. While employers must, with few exceptions, make these meal breaks available to qualifying employees, the employees do have the right to forego meal breaks during shifts of less than six hours.

Penalties for Denied Meal Breaks

What happens if an employer does not allow their non-exempt employees to take meal breaks as mandated? Generally, for every day that an employer fails to provide a required meal break, the employee may be entitled to one hour of pay at their regular wage. If the employee is allowed a meal break but not free from work duties, the meal is considered on-duty and, in most cases, the employer must also reimburse the employee for the meal break, again at the employee's regular wage. In fact, even if the employee is relieved of all job duties during a meal break, but still required to remain on the job site, the employer may have an obligation under California law to compensate the employee for his or her break time.

There are a few limited situations in which California law allows on-duty meal periods. If the nature of an employee's work is such that he or she cannot reasonably be relieved of all duties during meal breaks, the employee and the employer may agree to on-duty meal periods. For example, a sole barista in a coffee shop or a security guard working alone at a remote site may not be able to totally relinquish work duties for 30 minutes at a time. In these circumstances, however, the agreement as to on-duty meal breaks must be made in writing, and the employee must have the right to revoke the agreement at any time.

Mandatory Rest Breaks

Along with meal breaks, California law also requires employers to provide non-exempt employees with regular rest breaks. For every four hours of work in a shift, employees are entitled to a 10 minute rest break. Employees are free to waive any or all rest breaks, but employers must not coerce employees into doing so. Also, rest breaks should be provided in the middle of each four hour period, or as near as possible. As with meal breaks, employees who are denied rest breaks are generally entitled to one hour of pay at their regular wage for each day they were denied one or more rest break. Unlike meal breaks, however, rest periods should be taken on-the-clock and should be counted as time worked. Because of this, employees may be required to remain on the employers' premises during rest breaks.


These are only a few of the situations in which you may have been improperly denied wages or workplace rights by your employer. For more information on California wage and hour laws, contact an experienced employment law attorney.

ABOUT THE AUTHOR: Article provided by Navarette Law Firm
The Navarette Law Firm's employment and discrimination lawyers in San Jose and San Francisco have successfully represented employees throughout The Bay Area and Silicon Valley against small businesses as well as Fortune 500 companies. That is one reason we have been honored in the Nationwide Register's Who's Who In Executives And Businesses. Contact us today for a complimentary no-nonsense analysis of your employment law case if you need a sexual harassment lawyer in San Jose or San Francisco, need an overtime lawyer in San Jose or San Francisco, need a discrimination lawyer in San Jose or San Francisco, need a whistleblower lawyer in San Jose or San Francisco, need a retaliation lawyer in San Jose or San Francisco, or need a wrongful termination lawyer in San Jose or San Francisco. We can help you. And we'll fight for justice for you.

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While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.