Employer is Legally Prohibited From Retaliating Against Employees

Employers cannot retaliate against employees who seek to enforce their employment rights under the law. An employer cannot fire, demote or otherwise harasses employees who seek to obtain wages and benefits legally owed to them. To protect employees, statutes provide for damages, injunctive relief ordering the employer to refrain from prohibited conduct and monitoring of the employer's behavior, interest, attorneys' fees, and costs awardable to employees who bring suit. Employers face big penalties if they retaliate against employees who pursue their wages, overtime pay, and other benefits.

Overtime Compensation

In California, generally employees are entitled to overtime pay if they work more than 40 hours per week, or more than 8 hours per day, and their position is not otherwise exempt from the overtime laws. For an employee who is paid by salary, the regular rate of pay is calculated by dividing the annual salary by 2,080 hours. Common rules for overtime compensation are as follows:

Under Section 510 of California's Labor Code, (1) any work performed in excess of eight hours in one workday, (2) any work performed in excess of 40 hours in any one workweek, and/or (3) the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half (1½) times the regular rate of pay for an employee. Hours worked in excess of 12 hours in one day as well as hours worked in excess of 8 hours on any 7th day of a workweek are to be compensated at the rate of no less than twice the regular rate of pay of an employee. (A rare exception to these rules exists for workplaces adopting an alternative workweek schedule upon a two-third's vote of the affected employees by secret ballot method).

Are You an Independent Contractor Entitled to Overtime Pay?

Some employers attempt to evade the overtime laws by calling certain workers “independent contractors” as opposed to employees. The employer’s choice of terminology, however, is irrelevant. An “independent contractor” may be entitled to overtime if one or more of the following factors are present:

Exclusivity: the worker works exclusively for the employer
Importance: the worker’s services are an important part of the employer’s business
Control: the employer controls the worker’s work hours and place and manner of work
Equipment: the employer pays for the worker’s equipment, tools, and facilities necessary to complete the work

Many computer and/or high tech professionals are employees of temporary employment agencies who contract them out to client companies as consultants. These temporary agencies receive a portion of the hourly rate of pay/wages that the client company pays for the computer and/ high tech professional’s services. As such, these professionals do not receive the additional amounts paid for time-and-a-half (or double time) for overtime compensation without a deduction for the agency commission. Further, these professionals are treated as independent contractors by the temp agency’s client company, but, in actuality, do not have the freedom of independent contractors, nor are they able to deduct the full range of business expenses. For example, they do not receive the benefits and stock options that other industry clients give their staff employees, nor can they qualify for the benefits supposedly offered by the agencies.

Damages or penalties that are typically recoverable in overtime violation cases

While the primary recovery sought in overtime cases is payment of the overtime wages themselves, California law also allows for various forms of penalties as well as the recovery of costs and attorneys’ fees. The provisions allowing recovery of costs and attorneys' fees are of significant benefit to workers considering bringing wage and hour claims since the legal work involved in prosecuting such cases through trial and/or any necessary appeals can be substantial.

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