“Off-the-Clock California Overtime Lawsuits on the Rise", says Employment Law Attorney
Employees are usually working “off-the-clock” when an employer forces or pressures workers to work outside of hours that are not clocked in. “Employers are facing pressures to keep the bottom line and expenses down,” says Yeremian. “An obvious solution is to not pay their employees California overtime and/or under-report hours they are working.”
Yeremian sees many off-the-clock claims from the construction industry, where workers don’t have traditional time clocks: either they self-report hours on written time sheets or their supervisors write up a 9 to 5 day. But in reality they could be starting work hours earlier, and leaving later.
“We also see this California overtime violation in the retail industry,” adds Yeremian. “Employees are clocking out and subject to security checks, so they are locked into the store, or wherever they happen to be working.”
One example of this California labor law violation and subsequent California overtime lawsuit involved Costco employees who were held hostage- they were locked in the store after clocking out while management performed closing duties. Because Costco violated the United States Fair Labor Standards Act, a federal judge in California ruled the the Costco employees’ overtime lawsuit could proceed as a state class action in California and a conditional collective action nationwide.
Yeremian says the rise in off-the-clock overtime claims is that the enforcement of labor laws has increased with the prevalence of class action lawsuits. “Workers are increasingly more aware of their rights and employers have been sued for one labor violation or another in the past, but employers still think they can get away with it,” he explains. “And there are simply forces of human nature: Managers have a lot of pressure by upper management and owners to keep costs--especially labor costs--down. That translates to under-reporting and off-the-clock work.
“These overtime violations are typically happening with hourly and minimum-wage workers who are less apt to know their rights and are taken unfair advantage of. And they are less apt to enforce their own rights, particularly in an economy that recently had a downturn. Employees are simply afraid to speak up for fear of losing the only job they have, and there aren’t too many job vacancies right now.”
Be Pro-Active with Off-the-Clock Overtime Claim
If you are thinking about filing an off-the-clock overtime claim, Yeremian advises the following:
1. Keep track of your hours. Write them down in a journal, a calendar, a diary, anything. You have the right to report this uncompensated time to your supervisor and the law protects you. You are protected even though you may be incorrect regarding how you are supposed to be paid. As long as you have a good faith belief that a violation occurred and are terminated, demoted or suspended for reporting such a violation you may have a claim for wrongful termination or retaliation against your employer.
2. Report off-the-clock hours to you supervisor, HR, company owner (if you work for a small company), the California labor board (free of charge), and a California employment attorney. The vast majority of wage and hour lawyers will provide a free consultation over the phone and if they agree to represent you in a case, they will do so on a contingency basis??"meaning you don’t have to pay out of your pocket.
3. Talk to your co-workers and see if they are having similar problems. When one worker is suffering from these types of wage violations, typically other workers are in the same boat.
If you bring a class action lawsuit to obtain proper compensation for these violations, you can obtain compensation on behalf of yourself and everyone else who has suffered the same violation. Furthermore, if you bring the class action, you may be awarded an additional sum from the court due to bringing the case forward.
If you have been terminated or demoted from work, you may have a claim of retaliation against the employer. Through that claim you may be able to recover damages, including lost wages, emotional distress and if severe enough, punitive damages.
At what Point would my Employer know that I have filed a claim against them?
Many workers are reluctant to bring a claim against their employer because it might lead to a hostile work environment. But employers will not know that a claim has been filed until they have actually been served with the complaint.
“For most California wage and hour violations, employees have three or four years within which they can bring a lawsuit,” says Yeremian. “But of course I encourage employees who believe they are suffering from these overtime violations to contact an attorney or the California Labor Board at their earliest opportunity because some types of remedies-- such as penalties--are only recoverable for violations that occurred within the last year.
In certain types of cases where the court finds that the employer has violated minimum wage laws by failing to compensate employees for all hours worked, the court may award double the unpaid wages to the employee.”
Yeremian and his law firm recently filed a case against a large retailer alleging that there is a systematic under-reporting of actual hours worked by employees who work in distribution centers. “A former employee??"she worked stacking boxes??"called us with her complaint,” he explains. “In her case, which includes her co-workers, they would clock out at the end of their shifts and would then be forced to wait at a security check line, sometimes up to 15 minutes in order to be inspected for theft. We are looking at hundreds of employees coming off the line at the end of a shift all at the same time and then waiting for the bag and coat security check.
These employees will likely have their day in court.”
David Yeremian is an experienced litigator and business counselor and co-founder of Orshansky & Yeremian LLP. He has worked on a wide variety of litigation matters including employment, real estate, securities, shareholder and partnership disputes, contract actions and business fraud.