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Orange County Employment Law Blog

New overtime provisions for farmworkers go into effect

Farmworkers in California will soon see changes to the wage and hour laws that govern their employment. While most workers in the state must receive overtime pay if they work over eight hours in a day or 40 hours in a week, farmworkers have long been exempted from these protections. However, laws are going into effect with the new year in 2019 that can provide some increased protections. California is the first state in the country to pass legislation requiring overtime pay for farmworkers.

Currently, farmworkers must receive overtime pay if they work more than 10 hours in one day or 60 hours weekly. With the new changes, overtime will kick in after 9 1/2 hours of work in a day or a 55-hour workweek. Currently, the legislation only applies to agricultural employers who hire at least 26 workers. Smaller employers will only be liable to pay overtime in 2022. The legislation may have the greatest impact on large agricultural firms that employ technically skilled workers to operate dairy systems, irrigators and other types of heavy equipment.

Manager liability for wage and hour violations

For many years, employees who were not compensated correctly for their work had trouble getting judgments from their employers. In an attempt to remedy this situation, lawmakers in California passed the Fair Day's Pay Act. The law imposed personal liability for specific wage and hour violations committed by owners, directors, officers, and other people in management within a company. This means that any acting agent of a business who is proven to violate wage and hour laws could be personally liable.

The extension of personal liability to certain employees was described in Section 558 and 558.1 of the Fair Day's Pay Act and affirmed in court. These liabilities are limited by laws that require employers to indemnify individuals who work for the company. In one California case, however, a manager was held liable for withholding wages because the company had gone into bankruptcy. This left the manager without indemnification, causing him to be fully liable for all damages rewarded.

How salary and overtime are different

Some employees in California might wonder how salary legally differs from overtime. Salary is financial compensation that an employee is paid regularly; it does not fluctuate. In contrast, overtime is paid to hourly employees when they work more than a certain number of hours or days.

Laws about wages, salary and overtime differ from country to country and from state to state. However, federal law in the United States is clear about the difference in salaried employees and hourly employees. A salaried employee might work more or fewer hours in any given week, but that does not change the amount the employee is paid. Salaried workers are not eligible for overtime pay.

Are you an independent contractor or an employee?

Independent contractors have become more common than ever, in large part because of the rise of the Internet. It makes it possible for a lot of jobs that used to get done in a traditional office setting to get done anywhere in the world. As such, employers work with people regardless of location and don't always need to hire them to officially join the company.

However, your classification makes a huge difference. An employee may be entitled to benefits and health insurance, while an independent contractor is not. If you think you're an employee until you want to use those benefits and then you find out that the company considered you a contractor, it can be problematic. So, what is the difference and which one are you?

Minimum wage going up in California

The minimum wage is going to increase in California starting on Jan. 1, 2019. On that date, employers that have 26 or more employees will be required to pay workers no less than $12 per hour. Smaller companies will be required to pay workers at least $11 per hour. Eventually, the minimum wage in the state will rise to $15 per hour. Large companies will need to reach that threshold by 2022.

Smaller companies will need to do so by 2023, and the minimum wage will increase by $1 per hour each year until then. However, the minimum wage hike could be postponed if economic conditions warrant it, and the same could be true if budgetary concerns arise. In the meantime, it is possible that workers in certain cities throughout the state could be subject to a higher minimum wage. Anyone who is not paid the proper minimum wage is encouraged to contact the Labor Commissioner's Office.

Proper worker classification should be a top priority

Uber drivers in California and Massachusetts were initially awarded $100 million in a 2016 settlement with the company. The claim asked that drivers be classified as employees as opposed to independent contractors. While it was thrown out by a federal court, drivers in New York were given unemployment benefits when it was determined that they were employees. Although incidents involving Uber may have gotten the most attention, it is not the only company that incorrectly classifies its workers.

In 2005, 6.9 percent of workers were independent contractors. By 2015, that number had increased to 9.6 percent of workers. Businesses can save money by classifying workers as contractors because they don't have to pay a minimum wage or provide benefits. Contractors are also required to pay their own employment taxes. However, in addition to harming workers, improper classification can hurt other businesses as well. This is because they are competing against companies that can pass on lower labor costs to their customers.

Unpredictable schedules and overworking leads to stress

Employees residing in California should be aware of examples of wage and hour disputes, which are especially common around Christmas. The push to get holiday shopping done in time results in employers pushing retail workers harder than ever to meet demand. Employees who complain or refuse to comply with their packed schedules may face retaliation. This leaves many employees feeling hopeless and choosing to not put up a fight, afraid their hours will be cut in response to their complaints. Some employees are even fired.

Scheduling problems include denial of time off, split shifts that force unpaid hours on workers and being let go early when they're not needed even though they were counting on the hours. Young workers are the most likely to deal with unreasonable schedules, likely because they are in no position to refuse. For example, research from the University of Chicago shows that nearly 40 percent of young workers are not given adequate notice of their work schedules, and the rates are even worse among part-time workers as well as people of color. Outside of young workers, nearly one in five experiences similarly unstable work hours. Overall, women and people of color are the most likely to be subjected to these abuses by their employers.

Applying overtime rules to on-call employees

Confusion over issues such as overtime pay sometimes leads to actions by California employers that violate the Fair Labor Standards Act. Situations may be further complicated when workers perform on-call duties beyond their normal work hours. In one case involving this issue, a nurse working at a health center claimed she was due unpaid OT pay for working weekends on call. She was paid her standard pay rate for working her required on-call weekend hours. However, she contends she was not paid for what she considered overtime during the weekends when she was on call.

What complicates wage and hour claims like this is the fact that on-call workers are sometimes permitted to engage in some personal activities. In this instance, the nurse spent her active work time during her on-call hours visiting patients and performing necessary clerical functions. However, there were times when she was not actively engaged in labor related to her occupation. This was the reason why the healthcare facility characterized her on-call time as non-compensable.

Law changes break requirements for some petroleum workers

Workers in California have strong protections as part of state law, especially in regard to wage and hour issues. However, a law was signed into effect in September 2018 that affects the rest break requirements for certain safety-sensitive workers at petroleum facilities. Assembly Bill 2605 applies to unionized employees and exempts them from the requirement that they must have no duties at all during their rest periods. The law went into effect when signed and could be renewed in 2021 upon its expiration.

However, the law does not apply to all workers at petroleum facilities; instead, specific guidelines indicate which workers could be affected by the reforms in the law. It only applies to workers who have some reasonable connection to emergency response. For example, it affects workers who must carry radios, pagers or monitors and must be available to respond to an emergency incident. In addition, it affects only workers who are covered by a collective bargaining agreement and receive hourly pay of at least 30 percent more than minimum wage.

Breastfeeding mothers have a right to extra breaks while working

The legal rights of workers vary based on a number of different factors. For example, hourly workers receive different protections than salaried workers. Similarly, direct employees receive certain protections that do not apply to workers classified as independent contractors.

While some worker protections are universal, others vary depending on your age, gender or even medical condition. The legal protections extended to breastfeeding mothers are a perfect example. These protections apply to only a small portion of the working population, but they are incredibly important for equal rights under the laws.