Roberts/McKay v C.R. England
Latest Blog Entries.
Friday, September 30, 2011 7:13:26 PM
The Case for More, Not Less, Franchisee Protection
Current franchise laws and regulations do not go far enough to protect the interests of franchisees against often times overreaching franchisors.
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Friday, September 30, 2011 7:10:28 PM
Support the Arbitration Fairness Act of 2009 (House Bill 1020)
Federal appellate courts continue to put their full weight behind arbitration and erode the flexibility of judges to set aside or at least limit one-sided arbitration schemes and results.
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Friday, September 30, 2011 7:08:48 PM
Welcome to Franchisee Law Blog
Lagarias & Boulter, L.L.P. devotes itself to keeping up-to-date on issues important to the franchising community and to franchisees in particular.
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Employment Law
Overtime Pay
Some employers illegally claim that salaried employees, employees with a
management title, or employees with management and/or administrative duties, are
not entitled to overtime pay. In fact, your title and method of compensation
have nothing to do with your right to overtime pay in California.
Every employee in California is presumed to be entitled to overtime:
- Any time that you work in excess of 8 hours in a day or 40 hours in a week
you are required to be compensated at a rate of 1.5 times your normal rate.
- Any time that you work in excess of 12 hours in a day you are required to be
compensated at a rate of 2 times your normal rate.
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Exemption from overtime payment requirements
Exempt means that there are exceptions to the above-referenced rule, and for
some positions, overtime pay is not required. Exemption claims are narrowly
construed against the employer and the employer bears the burden of showing all
the criteria for exempt status. Generally, in order to be exempt from overtime
all of the following must apply:
- You must be primarily (over 50% of your time) engaged in duties which meet
the test of the exemption. Examples of exempt work include:
- interviewing, selecting, and training employees
- recommending pay rates and hours
- directing work, keeping production records of
subordinates for use in supervision, evaluating the efficiency and productivity
of employees
- handling employee complaints
- disciplining employees
- planning and/or distributing work
- providing for the safety of employees and property
- recommending changes in status
- controlling revenues and expenses
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In contrast, examples of non-exempt work include:
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- Performing the same kind of work as subordinate employees,ordinate employees
- Performing any production or service work, even though not like that performed
by subordinates, which is not part of supervisory function
- Making sales, replenishing stock, returning stock to shelves, except for
supervisory training or demonstration purposes
- Performing routine clerical duties, such as bookkeeping, cashiering, billing,
filing, or operating office machines
- Checking and inspecting goods as a production operation, rather than as a
supervisory function
- Performing maintenance work
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2. You must regularly direct and supervise the work of two or more other
employees.
3. You must have the authority to hire or fire other employees or whose
suggestions and recommendations as to the hiring or firing and as to the
advancement and promotion or any other change of status of other employees will
be given particular weight.
4. You must customarily and regularly exercises discretion and independent
judgment.
5. Your responsibilities must include the management of the enterprise in which
you are employed or of a customarily recognized department or subdivision
thereof.
6. You must also earn a monthly salary equivalent to no less than two (2) times
the state minimum wage for full-time employment.
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Other exemptions include an outside sales exemption designed for employees who
are primarily engaged (over 50% of their time) in making sales, or selling
contracts or orders for specific services or facility use for which payment will
be made by the client. Outside salespeople, as defined by the Industrial Welfare
Commission (IWC) means any person who customarily and regularly works more than
half his working time away from the employer's place of business selling
products or services. A commission sales exemption is designed for employees
covered by Wage Orders 4 and 7 (workers in retail, technical, clerical,
mechanical and similarly employed industries). The commission sales exemption
requires that the employee be principally engaged in selling (i.e., over 50% of
the working hours) and receive more than 50% of his or her compensation from
commissions on goods or services. In order to constitute commissions, the
compensation received must be based on a percentage of the sale price of the
product or service.
Employer Must Keep Records
Employers have a legal obligation to keep accurate time records for all
employees entitled to overtime pay. An employer's failure to maintain such
records does not impact an employee's right to claim overtime. The employee's
hours can be based upon employee testimony which approximates the number of
hours worked. Employees are allowed to testify from memory based upon the
approximate or average number of hours worked in a day/week/month. That
approximation is controlling unless the employer can respond with more credible
evidence to contradict the employee's testimony.
Employer May Not Retaliate
It is against the law for an employer to take any retaliatory action against an
employee in response to an employee exercising a legal right such as seeking
overtime pay, or other legally required employment benefits. Such conduct by an
employer exposes the employer to further legal action for all damages caused by
the retaliation -- including claims for punitive damages.
Employer May Not Try to Waive Overtime Pay
It is illegal for an employer to enter into an agreement with an employee
whereby an employee waives overtime compensation. Any such agreements are void.