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Salaried Workers May Qualify For Overtime Pay
Posted by: O'dell
April 23, 2010
Topic: Overtime Pay and Misclassification of Employees

Many people incorrectly assume that simply because they're paid a salary, they're not entitled to overtime pay. The common misconception is that by taking a salary, a worker waives the right to overtime pay. However, under California law, there are a whole variety of factors that determine when someone is entitled to overtime pay-and, believe it or not, whether or not someone is paid a salary instead of hourly is usually irrelevant!

If you find yourself in a salaried position where you spend most of your time performing mundane, repetitive tasks that do not require you to use independent judgment or discretion (or if your discretionary judgments have to be reviewed and approved by a superior), then you in fact may be entitled to overtime pay.

Section 510 of the California Labor Code tells us: "Eight hours of labor constitutes a day's work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek... shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee."

Did you notice that it does not say "for an hourly employee"? That's because whether someone is paid hourly or by salary is not the test. In fact, the California cases that have decided that salaried workers are entitled to overtime pay have crafted a formula for determining what a salaried employee's hourly rate is, so that overtime pay can be calculated.

Here's an imaginary example: Sally is employed as an "Administrative Assistant." She spends the majority of her time answering phones, inputting data into Outlook calendars, typing emails and letters, faxing and filing. She receives a salary, but she has no power to hire or fire anyone and all of her discretionary decisions must be approved by her supervisor. Most likely, Sally is entitled to be paid for her overtime. If she arrives early, leaves late, works on weekends, or works through lunches and rest breaks, she may be working in excess of eight hours per day or 40 hours per week.

In most instances, the factor that makes a difference is the kind of work that is being performed. So, for example, if a salaried supervisor is performing the exact same duties as the hourly workers he or she supervises, then chances are the supervisor is entitled to overtime, just like the hourly workers. In fact, if the supervisor spends less than 50% of his or her time performing "manager" or "supervisor" duties, then he or she stands a good chance of being eligible for overtime.

Likewise, people in positions with technical names, such as "Tech Writer," "Compliance Engineer," "Claims Adjuster," "Account Manager" and the like, may be spending most of their time performing duties that require them to be paid overtime. Under California law, the title of the position means nothing. It's the duties that are actually performed that determine if someone should be paid for overtime.

The exceptions to the "eight hours per day or 40 hours per week" rule generally pertain to people who work in "learned professions" (e.g., lawyers, doctors, architects), those who are charged with actually running a business, such as company executives, and those who can act for the business based solely on their own independent judgment and discretion.

Different rules also apply to people in the computer software industry and the entertainment business. People covered by a collective bargaining agreement (union members) typically are governed by the agreement, rather than the Labor Code. Other than those few exceptions, most people are protected by the wage and hour laws that the Legislature has enacted.

Our firm has successfully litigated many overtime cases on behalf of diverse classes of workers that included salaried individuals. Every case is different, but if you're a salaried employee, even if you think it's a close call, it could be well worth your time to discuss your situation with a wage and hour attorney and find out if you, too, are entitled to overtime compensation.

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What Is A Class Action?
Posted by: Louis Marlin
January 25, 2010
Topic: Class Actions

Simply put, a "class action" is a lawsuit brought by a very few people (sometimes just one person) on behalf of a much larger group, all who have essentially the same type of legal claim against a particular defendant, or group of defendants. Examples are claims where a group of employees in a particular job position are not getting paid overtime, or are having their meal or rest breaks interrupted by their boss, or their employer may fail to reimburse them for their business expenses. Other cases might involve consumer claims related to a defective product, or claims that an online website deceived, misled or defrauded many customers. In short, a class action may be useful in many cases where a large number of people (usually over 50, and often numbering in the thousands or even tens of thousands) have suffered the same or similar harm as a result of the same or similar actions by a defendant.

The people who bring the class action on behalf of the larger group are often referred to as "class representatives". It is their job, and the job of their lawyers, to present facts to prove what the defendant has done wrong, and to show that the basic facts - the wrongful conduct - are the same or similar in regard to the class representatives and the "absent" class members they represent.

Despite what you may have heard on the advertisements paid for by big corporations, our courts do favor the use of class actions when they help the courts resolve many similar claims in one action, controlled by one judge. A class action, properly used, can result in substantial benefit to the absent class members. Individual recovery in class actions can range from a few dollars to thousands of dollars.

At Marlin & Saltzman, we pride ourselves on carefully selecting the cases we file, and recovering substantial money for class members. We have handled several overtime cases where the average gross recovery for absent class members was over $80,000.00. Others, of course, have had lower recoveries. We are proud to have been selected by Law 360 (www.law360.com) as one of the top plaintiffs' employment class action law firms in the country.

At Marlin & Saltzman, we accept class actions on a "contingency" basis. This means that we only get paid if we are successful in the case, either by taking the case to trial, or reaching a reasonable settlement with the defendant. We always welcome the opportunity to discuss the facts of your potential claim with you, to determine if a class action claim would benefit you and other potential class members.

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