Employment Law and Immigration – Overtime Issues

Immigration law is important and that is all that we cover most of the time. But our immigrant readers, may be facing other legal challenges from time to time. So we rely on our lawyer friends from across the country, to provide guest articles and reports. This week we are proud to feature Attorney Habib Hasbini’s Employment Law expertise.

Many of our clients and Blog readers are immigrants on work visas. Employment Law and Immigration often go side by side, so the info presented in this article should be very useful to our readers. We often hear the term overtime as it relates to employment practices, but what is Overtime?
An employer may dictate the employee’s work schedule and hours and legally require the employee work overtime. The employer may discipline an employee, up to and including termination, if the employee refuses to work scheduled overtime.

The general overtime provisions in California are that a nonexempt employee 18 years of age or older, or any minor employee 16 or 17 years of age who is not required by law to attend school and is not otherwise prohibited by law from engaging in the subject work, shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless he or she receives one and one-half times his or her regular rate of pay for all hours worked over eight hours in any workday and over 40 hours in the workweek.

Eight hours of labor constitutes a day’s work, and employment beyond eight hours in any workday or more than six days in any workweek is permissible provided the employee is compensated for the overtime at not less than:
One and one-half times the employee’s regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and
Double the employee’s regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.

There are, however, a number of exemptions from the overtime law. An “exemption” means that the overtime law does not apply to a particular classification of employees. There are also a number of exceptions to the general overtime law stated above. An “exception” means that overtime is paid to a certain classification of employees on a basis that differs from that stated above.

Actions taken by Employee When Denied Overtime – DLSE Procedures

An employee can either file a wage claim with the Division of Labor Standards Enforcement (“DLSE”) or file a lawsuit in court against the employer to recover the lost wages. Additionally, if the employee no longer works for the employer, she can make a claim for the waiting time penalty pursuant to Labor Code Section 203.

If the employee files a wage claim with the DLSE, the claim will be assigned to a Deputy Labor Commissioner who will determine, based upon the circumstances of the claim and information presented, how best to proceed. Initial action taken regarding the claim can be (i) referral to a conference, (ii) referral to a hearing, or (iii) dismissal of the claim.

If the decision is to hold a conference, the parties will be notified by mail of the date, time and place of the conference. The purpose of the conference is to determine the validity of the claim, and to see if the claim can be resolved without a hearing. If the claim is not resolved at the conference, the next step usually is to refer the matter to a hearing or dismiss it for lack of evidence.

At the hearing the parties and witnesses testify under oath, and the proceeding is recorded. After the hearing, an Order, Decision, or Award (“ODA”) of the Labor Commissioner will be served on the parties.

Either party may appeal the ODA to a civil court of competent jurisdiction. The court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. The evidence and testimony presented at the Labor Commissioner’s hearing will not be the basis for the court’s decision. In the case of an appeal by the employer, DLSE may represent an employee who is financially unable to afford counsel in the court proceeding.

When the ODA is in the employee’s favor and there is no appeal, and the employer does not pay the ODA, the DLSE will have the court to enter the ODA as a judgment against the employer. This judgment has the same force and effect as any other money judgment entered by the court. Consequently, the employee may either try to collect the judgment herself or assign it to DLSE.

If the employer discriminates or retaliates against an employee in any manner whatsoever, for example, he discharges the employee because she filed a wage claim or threaten to file a wage claim, the employee can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. In the alternative, the employee can file a lawsuit in court against the employer.

For more information, feel free to email us to consult an employment attorney.