California Overtime: Threatened and Harassed

San Diego, CA "I worked at a restaurant where the managers consider tips to be our overtime," says Cheryl. "We didn't get any breaks, nor were we allowed to bring food on the premises from another eatery. When I complained to my manager that they were violating the California labor law, I was laid off. Now my lawyer is filing a lawsuit against them."

Cheryl worked for three years at the restaurant, collecting minimum wage. She worked five days a week, eight hours per day. But on Friday and Saturday she worked from 5 pm until 2 am, and she wasn't paid overtime.

California law requires overtime after eight hours, and after 40 hours in the payroll week, plus double time over 12 hours and on the seventh consecutive day of work. As well, federal law requires overtime after 40 hours. In some cases, California law permits an employee to waive the requirement for overtime after eight hours if she does so in advance, and if she is legitimately working a four day, 10-hour per day schedule. But Cheryl never agreed to waive her overtime rights.

"When I complained to our general manager he said I should talk to my union rep, as a joke. We aren't unionized??"no one is in a union. My employers had their own dictatorship going on: they don't provide food for us but if we order from another eatery or someone picks up a sub or pizza from next door, we would be reprimanded. You aren't written up but you are told not to do it again. We don't get lunch breaks or any break. The smokers, however, can go outside for a smoke break, but I don't smoke.

"When I complained about not getting five-minute breaks, my manager told me to get back to work and call my union rep. I was written up the next day, complaining that I wasn't a team player, the other bartenders didn't like me and customers didn't like me - after three years! I was the original waitress; they went through so many staff, mainly because of these long hours without overtime. I'm definitely not the only one. Some of the girls were young and playful and they were in favor with the boss, but if you just want to work, you aren't a team player.

"I was fed up and filed a complaint with the labor board; I took my check stubs and schedules. Then I talked to the restaurant owner to find out if she knew how I was being treated. She said that overtime was time over 40 hours a week but not over eight hours a day. I told her that the California labor law changed a long time ago and overtime kicks in after eight hours in one day. She has other employees who should be paid overtime. She said she would be willing to pay if she owed me.

"The labor board figured out that I am owed over $1,000. The owner rebutted and said she owes me $88 and she paid me $100 - I could keep $12 as a settlement. That is when I went to a lawyer.

"The lawyer told me to dismiss this claim 'without prejudice' because the owner wrote a retaliation letter to the labor board saying I had personal problems and that I tried to extort money from her by saying the law had changed ages ago. My lawyer was so disgusted with the letter; he said I have a solid case.

"We were scheduled for a meeting at the labor board last week. My lawyer told me to put off the meeting - dismiss without prejudice - until he has time to get the paperwork together. He is going to file a suit on my behalf for slander and defamation of character. And I will discuss the question of overtime at our next appointment; he is going to include that too. This letter was so scathing, there is no way that she should get away with this.

"When I was at the labor board I heard so many stories similar to mine. People know jobs are scarce and they were in the same position as me--getting threatened and harassed, not getting breaks and not getting overtime. It's like I was working on a plantation - I wasn't even allowed to bring in my own food!"