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Employer Might Have to Pay for Unauthorized Overtime

November 12, 2001

Question: I work as a manager for a company and I get paid hourly. I usually end up working 40 to 46 hours a week, but I receive no extra pay when I work more than 40 hours. Sometimes, I do not get a lunch break on hectic days.

When I asked my boss, he refused to pay, saying he did not authorize the overtime. Is it legal for him not to pay me overtime because it wasn't authorized?

R.D., Los Angeles

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Answer: Under the circumstances, it is not legal for your boss to refuse to pay you overtime just because it was not authorized.

First, even though you are called a manager, you still are eligible for overtime pay.

Whether you are exempt (not eligible for overtime pay) or nonexempt (eligible for overtime pay) does not depend on your job title. It mainly depends on the duties you perform and the method by which you are paid.

Because you receive hourly pay rather than a salary, you do not meet the legal requirements for exempt status, regardless of your duties. Therefore, your employer is obligated to pay you overtime.

Second, even though the overtime was not authorized, your boss still is required to pay it as long as your employer knew or reasonably should have known that you were working the extra hours.

An employer may instruct employees not to work overtime unless authorized, however, and it may discipline and even terminate employees who continue to work unauthorized overtime.

Finally, with some limited exceptions, California law prohibits employees from working more than five hours without a meal period of at least 30 minutes. Unless special rules apply, therefore, your employer also might be violating the law by not providing you with a lunch break.

Your employer has to pay you for the time you actually work during your meal period, of course, and it also might have to pay you a penalty equal to one additional hour of pay for each day it does not provide you with a meal period.

If you wish to pursue a claim for unpaid overtime or meal period penalty, you can contact the California Division of Labor Standards Enforcement, also known as the state labor commissioner, or you can file a lawsuit.

Stacy D. Shartin

Employment law attorney

Seyfarth Shaw

Retiree Questions Vesting Requirement

Q: I was a full-time employee of an aerospace company from 1967 through 1975.

When I retired last year at the age of 66, I contacted the company to claim my pension benefit. They are now telling me that I am not vested because I did not fulfill their 10-year requirement at the time of my termination.

This came as a big shock, since I had been under the impression that the requirement for 100% vesting at the time of my termination was five years of continuous employment.

Didn't ERISA mandate a five-year vesting rule in 1975?

A.W, Rancho Palos Verdes

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A: Because the plan in which you participated was in existence on Jan. 1, 1974, it was not required to comply with the provisions of the Employee Retirement Income Security Act of 1974 (ERISA) until Jan. 1, 1976. That deadline would have been even later if the plan's fiscal year did not coincide with the calendar year.

Although your plan was not required to comply with the new ERISA vesting requirements in 1975, the act contained a provision permitting an employer to voluntarily move up the date for accepting the ERISA provisions.

You should contact the plan administrator to determine whether such a decision was made.

Kirk F. Maldonado

Employee benefits attorney

Brobeck, Phleger & Harrison

Employee HandbookIs Not Mandatory

Q: Is there a law that requires company policy to be written down and put in a book form? Is there any requirement that it be distributed to each employee?

S.C., Los Angeles

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A: No. Many employers have employee handbooks that they distribute to employees. However, there is no law requiring an employer to have written policies in a book form.

Deborah C. Saxe

Management attorney

Heller Ehrman White & McAuliffe

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873 or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent Shop Talk columns are available at http://www.latimes.com/shoptalk.

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