Legal Question in Employment Law in California

My employer does not give me (or my coworkers) our breaks regularly nor when they are supposed to be given.  Today I began work at 7 (7am-3pm shift), and although I asked my supervisor for my meal break, by 1230pm she still wouldnt let me take it.  From what I've researched, during an eight hour shift the employer is supposed to give me my break by the fifth hour. In our office there is also a time calender that states the first 10 min break is at 2 hours, the 30 min meal break is to be given at 4 hours, and the second 10 min break at 6 hours around 1240 I clocked out for my meal break, even though my supervisor was still trying to tell me not to take it. When I returned from my meal break she had a write up waiting for me under "not taking the break at the allocated time" or something. Is she legally allowed to do that?  I've been working at this company for about a year, and I'm tired of not getting my lunch/rest peiods, or if I do get them, there all together at the last part of my shift when Im about to leave. On top of that, I occasionally am sent to places to buy things/pick up things for the store, off the clock & not reimbursed for my time or gas money. Are there any laws for that?  Lastly, tonight I went over my pay stubs & matched them against my clock out receipts (that you get at the end of each day) and I noticed that my overtime hours (although small) go from 30minutes one day to suddenly 10 minutes the next! (on the part where it shows the "period to date: overtime hours" and on my pay stub the overtime hours are even smaller. Is there any action I can take about my employer shaving off my work hours?  Thank you so much!!!

Asked on 6/24/13, 12:39 am

3 Answers from Attorneys

Charles Perry Law Offices of Charles R. Perry

It sounds like you may have a claim for unpaid wages and/or penalties, for failure to properly pay overtime and provide breaks. This claim is probably most easily pursued before the California Labor Commissioner. Your other alternative is small claims court.

You may wish to consult with an attorney that handles plaintiff-side employment disputes.

Best of luck to you.

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Answered on 6/24/13, 12:46 am

There certainly is action you can take. From the facts presented in your question, and assuming you are a non-exempt employee (i.e., you are entitled to overtime pay, meal periods, rest periods), your employer is clearly in violation of all kinds of California wage and hour laws, including failing to provide you with a meal period within the first five hours of work and failing to pay you overtime properly, and failing to keep proper payroll records.

You have a couple of options: you can file a wage claim with the California Department of Labor Standards Enforcement (DLSE, a.k.a. the Labor Commissioner), or you can retain an attorney to represent you against your employer in a lawsuit. If your claim is significant (and it might be, depending on your hourly wage and how long you have worked there), it is often worthwhile to hire an attorney. A good attorney will generally work more aggressively for you than the DLSE, not because the DLSE attorneys are inferior, but because they are often over-worked and don't have the resources to devote tons of attention to every case. In addition, when you retain an attorney and sue your employer in court, you may also recover all of your attorney fees (which you can not recover when you go through the DLSE). Many attorneys will provide a free initial consultation, and many (including my firm) will not charge you any out-of-pocket fees.

Also, your question states that your co-workers are experiencing the same treatment. If there are enough of you, it may be worthwhile to consider a class action or collective action against the employer; but that is something you should discuss with the DLSE or your attorney, should you decide to go that route.

Good luck to you!

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Answered on 6/24/13, 12:57 am
Kristine Karila Law Office of Kristine S. Karila

As I responded to the same question you posted on, you may be entitled to one hour of pay for each meal period and each break in which your employer did not provide the opportunity for you to take. In addition, it is unlawful for your employer to not keep accurate time records and for not paying you what is owed to you for all work provided by you, including driving to buy things for your employer and overtime. Call an employment law attorney to discuss. Many offer a free initial phone consultation and may be able to get what is owed to you by writing a demand letter to your employer.

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Answered on 6/24/13, 10:51 am

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