Wage and Hour Class Actions
What is a wage and hour class action?
It is a lawsuit filed on behalf of a group of employees who have been wronged in the same way with at least one plaintiff representing this group. If an employee is being mistreated or wronged at work, there are chances he/she is not the only employee. Employees are stronger if they work together. You can be the employee representing the group of employees and to stand for both your individual and their rights. If you decide to pursue a class action rather than to fight for your individual rights only, you will hold the employer accountable for wrongdoing and mandate them changes that will benefit all employees who have been affected.
Tunyan Law, APC represents employees in wage and hour class actions in state and federal courts with respect to the Labor Code violations including but not limited to:
Unpaid minimum wages
Under California law, almost all employees are entitled to the minimum wage regardless of their payment structure, i.e. piece rate, by commission, hourly or salary.
Unpaid overtime wages
Under California law, an employer is obligated to pay overtime, whether authorized or not, at the rate of one and one-half times the employee's regular rate of pay for all hours worked in excess of eight (8) up to and including twelve (12) hours in any workday, and for the first eight (8) hours of work 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 twelve (12) in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.
If your employer had a policy and practice of unfair time clock rounding that have a negative impact on you or certain employees resulting in time shaving and causing you or them to be undercompensated, you may have a legitimate claim.
Working off-the-clock without pay
Work performed by employees for their employer, with their knowledge, is defined as off-the-clock work. Examples of off-the-clock work are working before a scheduled shift starts (pre-shift preparatory work to set up a workplace or tools, etc.), working after the scheduled shift end to clean up the workplace, to store the equipment, etc., post-shift paperwork or working during meal and rest breaks.
If a non-exempt employee’s payment structure is based on a commission pay, California law imposes certain requirements on employers for commission pay. For example, in general, commissions must be paid at least two times per month, and employees are entitled to unpaid commissions at termination of employment. California law also mandates a written commission agreement setting forth the terms of commission pay. Commissioned employees should still be paid a minimum wage, and commissions should be included in the calculation of regular rate for purposes of overtime pay.
Alternative workweek schedule violations
Under California law, an employer may set alternative workweek schedules in certain industries (ex. working 3/12 or 4/10 shift) allowing employees to work more than eight (8) hours in a 24-hour period without overtime pay. However, employers must comply with California law requirements for setting alternative workweek schedules.
Failure to provide meal breaks
Under California law, non-exempt hourly employees who work shifts of five (5) hours or more are entitled to take an unpaid uninterrupted thirty (30)-minute meal breaks. If employee’s meal breaks are missed, interrupted, short or late, an employee is entitled to an extra hour of pay for that day.
Failure to provide rest breaks
Under California law, non-exempt hourly employees are entitled to take a 10-minute rest break for every four (4) hours of work or a major fraction. An employer is also obligated to inform employees about their rights to take rest breaks. If employee’s rest breaks are missed, interrupted or short, an employee is entitled to an extra hour of pay for that day.
Failure to reimburse expenses necessary to perform work duties
Under California law, an employee must be reimbursed for all necessary expenses or losses incurred by the employee during his nor her employment necessary to perform work (ex. usage of personal cell phone or vehicle for work, purchase of tools, uniform, etc.).
Failure to pay final wages
Under California law, employees are paid all wages due at the time of termination which includes all accrued and unused vacation pay, bonuses, commissions, expense reimbursement. If an employee resigns without notice, he must be paid within 72 hours. If an employee provides at least 72-hour notice, he must be paid by the last day of work. If an employer fails to pay final wages, an employee may be entitled to waiting time penalties.
Failure to provide accurate wage statements
Under California law, an employer is obligated to provide an employee with itemized wage statements (pay stubs), and those wage statements must accurately reflect the actual hours worked by employee, the gross and net wages and hourly rate in addition to other items required by California law. If employer fails to provide an employee with compliant timely itemized wage statements, an employee may be entitled to penalties.
Misclassification of employees as independent contractors
Employers may misclassify non-exempt employees as independent contractors in order to avoid additional costs of paying overtime, sick and vacation pay, providing meal and rest breaks as well as paying additional taxes. California law has certain requirements for qualifying an employee as an independent contractor regardless the “independent contract agreement” that employee was mandated to sign at hiring.
Misclassification of employees as exempt employees
Under California law, exempt employees are not qualifying for overtime pay. In general, an employee can qualify as exempt if he is working as an executive, administrative or professional employee, he is paid a salary of at least twice the minimum wage, and ordinarily exhibits independent judgment and discretion at his position. However, employers sometimes misclassify non-exempt employees as exempt employees in order to avoid payment of overtime.
Unpaid sick and vacation pay
Under California law, an employer must provide at least 24 hours or three days of paid sick leave per year, and the full amount of this leave must be available for the employee's use from the beginning of each year of employment, calendar year, or a 12-month period.
California law does not have a requirement for an employer to provide its employees paid or unpaid vacation time. If an employer does have a policy, practice, or agreement to provide paid vacation, an employee is entitled to vacation, and an employer has an obligation to comply with the requirement to provide vacation pay. Under California law, earned vacation time is considered wages, and vacation time is earned as work is performed.