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Overtime Pay Is the Norm for Non-Exempt Workers

October 31, 1994

Question: I'm currently employed in a bagel shop and work about 84 hours a week. My basic pay is $4.35 an hour and I receive no overtime. My boss tells me that this is the way it is. Do I have any rights?

--C.B., San Clemente

Answer: Yes. Virtually every employer in California is subject to the Industrial Commission Welfare Orders, which require that employers pay non-exempt employees premium pay of 1 1/2 times their normal hourly rate for time worked in excess of eight hours daily or 40 hours weekly and twice their normal hourly rate for hours worked in excess of 12 daily, or in excess of eight on the seventh day worked in a workweek.

Assuming that you are not an exempt employee, you are entitled to overtime compensation and may pursue a claim for it with the California Division of Labor Standards Enforcement.

--Michael A. Hood, Employment law attorney, Paul, Hastings, Janofsky & Walker


Question: I was hired by a company for a salaried sales position with commissions and given a specific sales territory, which was five minutes from my home. The primary reason I left my old job was an excess amount of driving.

After two weeks of training, I was told the territory I thought I would receive had been given to someone else, actually prior to my being hired. My new territory requires driving two hours each way. I don't know whether I have any rights in this matter.

--S.F., Fullerton

Answer: An employer is liable if it misrepresents terms of employment to a prospective employee who relies on such statements to his or her detriment. If the employer knew that the promise of a certain territory was a material reason for you accepting this new job assignment, then failure to fulfill that promise constitutes breach of contract.

If the employer knew at the time that the promise was made to you and that it had no intent to fulfill the promise, as it appears in your case, then the breach of contract might even amount to a fraud claim. Not only could you recover your out-of-pocket wage losses, but also punitive damages as well.

The key here is being able to prove that the promise was in fact made to you. If it is your word against the employer's word, that still may be good enough. It would be better if you could confirm it through a witness or a written document. Additionally, you need to be able to prove that the employer knew that the territory had been assigned to somebody else prior to you being hired and the representations being made to you.

You also will need to show that you adequately communicated to the employer that the specific assignment of territory was an important reason for you accepting the job.

The damages you suffered also affect the value of your claim. If your new job gives you substantially more pay than your old job despite the driving, then you might hesitate to complain too strongly to your employer. However, if the main difference is simply the extent of the driving, then consider your ability to find a replacement job before threatening your employer with legal action.

--Don D. Sessions, Employee rights attorney, Mission Viejo


Question: If an employee works a 40-hour workweek and is then required to work four to six hours on Saturday, is it legal for an employer to refuse to pay overtime and insist that the employee take time off during the following week?

--R.M., Buena Park

Answer: Generally, an employer may not require an employee to take time off in place of overtime pay. In certain circumstances, an employee may choose to forgo overtime pay in favor of time off. Under a fairly recent provision of state law, any such arrangements must be in writing.

--Calvin House, attorney, Fulbright & Jaworski L.L.P., Adjunct professor, Western StateUniversity College of Law


Question: I'm a 60-year-old hourly employee of a large corporation and I'm being terminated under a restructuring plan. My 13 years of service leave me about 18 months shy of the necessary points to be awarded early retirement pay. Can I successfully sue to receive early retirement?

--G.K., Huntington Beach

Answer: Probably not. The mere fact that you do not qualify for severance pay under the rules of your employer's severance pay plan does not give you any basis for a lawsuit.

On the other hand, if you can prove that you were chosen for termination specifically because you are not eligible for early retirement--as opposed to some neutral, legitimate reason--you may have a claim under Section 510 of the Employee Retirement Income Security Act, which prohibits employers from terminating employees to prevent them from obtaining retirement benefits. However, such a claim could be quite difficult to prove. It will not be enough to show that most of the people laid off were not eligible for early retirement, since most companies will seek to lay off less senior employees first, and less senior employees are usually further away from retirement age.

--James J. McDonald Jr., Attorney, Fisher & Phillips, Law instructor, UC Irvine

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