Legal Question in Employment Law in California
Overtime
Our office hired an employee back in 2003 paying her $9.50
an hour. We use punch card and pay bimonthly. Employees are not asked to work overtime but if they do work over the regular 8 hours, we have been paying them straight since our we have basically a very friendly office and if someone
even though have not been asked to work over the 8 hour limit, we think that we should pay them their regular rate. Some employees begin not to clock out for lunch or breaks. This resulted in frequent 9 to 10 work hour days. One particular employee was noted for abusing our practice and hence was told that we will pay her a max of 8 hours per day and she should not work more than 8 hours. Later on this max of 8 hours was cut to max of 5 hours because we did not like her work and did not need that many hours from her. She was upset and left for another job.
Now she had filed a claim with labor department demanding unpaid overtime of $2,900 + Do we have any recourse ? Could we at least ask for substantiations ? Her time card would probably show no lunch breaks etc. The excess hours would obviously due to mainly lunch time and breaks.
2 Answers from Attorneys
Re: Overtime
You have a right to some 'discovery' in the process, but it is limited and needs correct handling. The employee has to prove their case, you have a chance to present your side through witnesses and documents. You can have an attorney represent you to present the evidence and make your arguments in the most effective manner possible. For your sake, hope that this isn't the first of many such claims. You need to straighten up your policies to avoid future problems. Contact me if interested in getting this help.
Re: Overtime
The employee making the claim for overtime has the burden of proving she worked the hours she claims. She may subpoena your time records and if they show she worked more than 8 hours a day, you will have to prove she didn't actually work those hours.
But of more concern is your belief that you don't have to pay the overtime rate because you have a very friendly office. If an employee works more than 8 hours a day or 40 hours a week they must be paid an overtime premium, with limited exceptions. Failure to do so could subject your company to more claims by other employees.
You could implement a policy that requires authorization before an employee works overtime and discipline that employee for failing to get authorization. But if they work those hours, even without authorization, you must pay them the overtime premium.
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