Can You Sue an Employer for Not Paying Overtime?

Some employers may be not paying overtime to their assistant managers, which may entitle these employees to compensation in accordance with California labor laws.

When employees work more than 40 hours in a single workweek, they may be eligible for overtime pay. Overtime is typically paid at one and a half times an employee’s typical rate of pay, according to the U.S. Department of Labor.

Most jobs are eligible for overtime under the federal Fair Labor Standards Act (FLSA). Even if jobs are not promised overtime under FLSA, state laws may entitle workers to overtime pay.

However, employees may be exempt from overtime based on their job category (executive, administration, professional, etc.). For example, state employees, hospital workers, and IT professionals are not guaranteed overtime and are often exempt.

Outside salespeople with a primary duty of selling away from the office are often exempt from overtime pay, and generally, any worker earning $100,000 for non-manual labor is exempt, too.

Even if employees do not fit in any of the exempt categories, they may be exempt from overtime if they meet the following three criteria:

• The employee is paid at least $35,568 a year or $684 a week (a significant increase as of Jan. 2020)
• The employee is paid on a salary basis
• The employee performs exempt job duties

There are a few exceptions to this rule, but most employees must pass all three “tests” in order to be classified as exempt from overtime.

California Labor Laws

Overtime law is determined by both federal and state laws. In the case of conflicting standards on a federal and state level, employers are governed by whichever set of standards provides better overtime pay for employees. California is one of the best states for employees when it comes to labor laws and overtime pay.

The Fair Labor Standards Act (FLSA) and California labor laws are intended to protect workers from employers who take advantage of their employees or refuse to pay proper wages. These laws protect workers from underpayment or unpaid wages, inadequate or unpaid meal and rest breaks, lack of termination wages, and misclassification of workers to avoid overtime payment.

Under California’s overtime laws, employers are required to give workers overtime pay not only for their hours worked in excess of 40 hours a week, but also for any hours worked in excess of eight hours in a single workday. This overtime pay must be calculated at a rate of one and a half times the employee’s usual rate of pay. Additionally, employees who work more than 12 hours in a work day are entitled to receive overtime pay calculated at twice their regular rate.

In order for employees to ensure that they are receiving all the wages they are due, employers must also provide workers with accurate wage statements along with their paychecks. These wage statements must include information such as the amount of hours the employee worked in a pay period, the rates of pay for the employee, and how many hours were worked at each rate of pay. If these wage statements are incomplete or incorrect, employees’ rights may be being violated. If you suspect that your employer is not paying overtime wages at the proper rate, you may be able to speak with an experienced attorney.

Additionally, California wage laws require employers to allow workers to take meal and rest breaks during their shifts. Workers are allowed a 10-minute rest break for each four hours they work. Workers who work shifts at least five hours long are also entitled to a 30-minute meal break. A second meal break must be offered to workers if they work shifts more than 10 hours long. Although workers may choose to waive their right to a meal break in some instances, employers are prohibited from denying workers their breaks or making them work through them.

Some employees may be nervous when speaking up about violations of California overtime laws, such as failure to pay overtime wages. There are laws in place to protect employees from retaliation.

Assistant Manager Title Might be Excuse for Not Paying Overtime

Although some may assume that assistant managers are not eligible for overtime based on their executive classification, this may not be the case. An assistant manager’s overtime eligibility is determined by their job duties.

A retail assistant manager is not eligible for overtime if they make more than $684 per week or more than $35,568 a year and perform the following “executive” duties:

• Manage the store and its employees as a primary, ongoing duty
• Regularly supervise two or more employees
• Set employee schedules
• Make hiring and firing decisions
• Are responsible for employee evaluations and discipline

However, routinely performing other job duties may entitle managers to overtime pay. If assistant managers routinely perform non-executive duties, employers may be legally required to pay them overtime wages.

Non-executive duties include:

• Helping customers
• Working the cash register
• Cleaning the store (including the bathroom)
• Mopping up spills
• Stocking shelves
• Cooking food
• Unloading trucks
• Taking out the trash
• Collecting carts from the parking lot

More than one company has faced an overtime pay class action lawsuit for allegedly misclassifying hourly employees by cloaking them in assistant manager or manager titles.

Former Amazon Employee Alleges Failure to Pay Overtime Wages

A former Amazon employee alleges he was duped into accepting a managerial role that was actually a job that consisted of a lot of manual labor.

Plaintiff Michael O. had worked as a warehouse manager for the company in several San Francisco Bay Area warehouses and alleges in his Amazon overtime lawsuit that he and other managers were denied overtime wages. The Amazon overtime lawsuit was filed in Contra Costa County Superior Court, and claims that the company misclassified both him and other employees in his position as exempt from overtime, violating California labor laws.

According to the Amazon overtime lawsuit, entry-level workers receiving hourly pay are eligible for overtime wages, but those who work as salaried managers are considered exempt from these overtime regulations.

Michael claims, however, that he and other managers in his position had been told that their jobs would be primarily supervisory roles. Instead of the managerial role he was promised, Michael says, he and others like him mostly performed manual labor.

“When we were hired, we were told we would be managers working on high-end things,” Michael The New York Times. “In reality, the bulk of the managers got stuck doing very tedious work which ultimately caused me to be injured.”

In late May 2019, California U.S. District Judge Jeffrey S. White found that Amazon provided enough evidence that Michael was primarily a manager and said the claims under FLSA should be dismissed.

Judge White said that at the same time, though, he could not conclude that Michael spent a majority of his time on managerial duties, which is required under California state law in order for an employee to be exempt from overtime pay.

For that reason, the judge allowed the Amazon class action regarding state law violations of overtime, meal and rest breaks, waiting time penalties and wage statements to proceed.

Other States Follow California’s Lead

California has long been known as a leader in workers’ rights, but other states are tackling the issues of their workers as well.

Michigan Attorney General Dana Nessel is creating a Payroll Fraud Enforcement Unit to lead investigations regarding wage theft. Among the main targets are companies that misclassify workers as independent contractors and those that are not paying overtime wages.

Nessel said she’s focusing on the industries that appear to abuse the laws the most. Construction, landscaping, janitorial services, child care, beauty services, retail, food service, car wash, and home health care are among the most commonly cited businesses.

Many of these lines of businesses also pay under-the-table at times, which hurts employees and the community as a whole, too.

Michigan plans to strengthen whistleblower protections to provide incentives for reporting wrongdoing and to protect employees from retaliation. The state also plans to increase penalties against companies that commit payroll fraud against Michigan workers.

When companies misclassify workers as independent contractors, they don’t pay into the unemployment system and they avoid paying Social Security and Medicare taxes.

Nessel explained that companies that don’t pay their fair share of these costs are able to bid up to 30 percent less than companies that operate legitimately. Such shenanigans cost workers their legal protections and benefits.

Nessel said the Economic Policy Institute estimated cheating businesses cost Michigan workers nearly $419 million in wages and overtime pay between the years 2013 and 2015. When workers are not fully paid, they are often forced to rely upon welfare programs to survive.

She plans to raise awareness of wage theft and to educate employees on how to file complaints so that bad actors in the business community are investigated and held accountable for their wage violations

Employers Can Face Lawsuits

If you are a manager or assistant manager and believe you are eligible for overtime pay that you are not receiving, you may be able to take legal action to seek back pay for your labor, as well as potential penalties, interest, and other monetary damages. Some overtime lawsuits have ended in settlements of hundreds of thousands or even millions of dollars.

Not paying overtime to employees who are eligible is a violation of federal labor laws and some state laws, meaning that underpaid employees may be able to take legal action under these laws in an overtime pay lawsuit against their employers.

According to the FLSA, it’s against the law to fire or discriminate against an employee for filing a complaint or for participating in legal action under FLSA.

A company found guilty of committing willful violations of the FLSA can be criminally prosecuted and fined up to $10,000. If found guilty a second time, that second conviction can result in responsible parties at the company serving prison time.

According to the Wage & Hour Division’s enforcement of FLSA, any employer who willfully or repeatedly violates the minimum wage or overtime pay laws may be fined a civil penalty of up to $1,000 per violation.

A qualified labor attorney can evaluate your case to determine if you qualify for overtime and the recovery of unpaid overtime wages because of misclassification or other legal missteps by your employer.