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FREQUENTLY ASKED QUESTIONS



General Questions


Q: What should I do if I want to speak to a labor and employment attorney?

A: Fill out the form on the left side of the page or call toll-free (866) 981-4800 for a free consultation with one of our labor and employment attorneys.

Q: Can my employer fire me because I inquired about my employment rights?

A: No, it is illegal for your employer to discriminate or retaliate against you for inquiring about your rights, safety concerns or overtime pay. Retaliation may include the threat of or actual termination, demotion, suspension, or harassment.

Q: How much will Girard Gibb's labor and employment law attorneys charge me?

A: Nothing. Our labor and employment law attorneys do not charge our clients for bringing a lawsuit.

Overtime Law Questions


Q: If I work overtime without authorization, is my employer obligated to pay for it?

A: Yes, California employment law requires that employers pay overtime, whether or not it is authorized. Overtime pay is one and one half times the regular rate of pay for all hours in excess of eight, up to and including 12 hours in a workday. After 12 hours, the employee is compensated at double the regular rate of pay.

Q: Can my employer penalize me for working unauthorized overtime?

A: An employer can discipline an employee for violating the employer’s policy of working overtime without the required authorization. However, California employment law requires that employers pay overtime, whether or not it is authorized.

Q: Are salaried employees entitled to overtime?

A: It depends. A salaried employee must be paid overtime unless they meet the test for exempt status as defined by federal and state laws, or unless they are specifically exempted.

Q: Can an employer require an employee to work overtime?

A: Yes, an employer may dictate the employee’s work schedule and hours. Under most circumstances, the employer may discipline an employee, up to and including termination, if the employee refuses to work scheduled overtime.

Independent Contractor Law Questions


Q: How can an employment law attorney help me if I was denied overtime pay as a result of being missclassified as an independent contractor?

A:If a worker can establish that they should have been classified as an employee rather than an independent contractor, they can file a lawsuit to recover past overtime pay. Our experienced employment attorneys are committed to helping our clients understand the nuances of independent contractor law and obtain the compensation they are owed.

Exempt vs. Non-Exempt Questions


Q: Is salary a factor in determining if an employee is exempt or non-exempt?

A: Under California Labor Code 515, employees must earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment to be considered exempt. Under the Fair Labor Standards Act, employees generally must be paid no less than $455 per week to qualify for an exemption.

Q: What other jobs are exempt under the FLSA?

A: Computer employees (such as computer systems analysts, computer programmers, and software engineers), outside sales employees, and highly paid employees(i.e. employees earning more than $100,000 per year).

Q: Are there exceptions to the requirements for exemption under the FLSA?

A: Yes. The exemptions do not apply to manual laborors, including carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, and construction workers, regardless of their salary or rank. The exemptions also do not apply to police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees.

WARN Act Questions


Q: What are the penalties for employers who violate the WARN Act?

A: Employers in violation of the WARN Act are generally liable to each affected employee for an amount equal to back pay and benefits for the period of violation for up to 60 days. New Jersey WARN Act differs from other WARN Acts in that it instead requires employers in violation of the Act to pay affected employees severance pay equal to one week of pay for each full year of employment.


Q: How can a WARN Act attorney help me?

A:The WARN Act is enforced when employees, or their representatives, bring individual or class action suits alleging that an employer violated the WARN Act. Our experienced WARN Act attorneys are committed to helping our clients understand the nuances of the WARN Act and obtain the compensation they are owed.

HOME > PRACTICE AREAS > EMPLOYMENT & LABOR LAW > OFF-THE-CLOCK WORK

Off-the-Clock Work

Are you forced to work off-the-clock?

Working outside of one's scheduled work time without compensation is generally known as working "off- the-clock." According to Alfred Robinson, former director of the wage and hour division of the Labor Department, failure to pay employees for off-the-clock work is "one of the more common violations of the Fair Labor Standards Act." Our labor and employment attorneys can help you determine if you are being paid fairly for off-the-clock work.

Common off-the-clock violations

Common ways employers violate off-the-clock laws, may include:

  • Failing to pay employees for the entire time they are clocked in.



  • Forcing employees to work extra hours without pay.



  • Failing to compensate employees who work through their lunch or breaks.



  • Requesting that employees work on the weekend without clocking in.

  • Failing to compensate employees who bring work home and continue to work through the evening.

Federal law and off-the-clock Work

The Fair Labor Standards Act (FLSA) provides information about the type of work for which an employee must be compensated. Under the FLSA, a work day begins when an employee starts their "principal activity," and ends when they finish their last principal activity of the day. The FLSA definition of a work day may be longer than an employee's scheduled shift or normal office hours.

California labor law and off-the-clock work

The California Industrial Welfare Commission defines "hours worked" as:

  • * the time during which an employee is subject to the control
    of an employer, and includes all the time the employee is
    suffered or permitted to work, whether or not required to do so.

The California Division of Labor Standards Enforcement has interpreted this definition to extend beyond an employee's scheduled shift, in various circumstances including instances involving pre and post shift duties.

Are you compensated for post and pre-shift work?

A common off-the-clock violation is failure to pay employees for pre and post-shift work. For example, an employer may ask employees to show up early or stay late, but put pressure on them to only record the hours worked within their scheduled shift.

Employers may also be obligated to compensate employees for regular pre/post shift activities that are integral to their principal work. These activities are sometimes referred to as "donning and doffing," as these activities may involve "donning" (putting on) or "doffing" (taking off) protective equipment or uniforms.

Learn More About Donning and Doffing

What can I do if I believe that my employer makes me work off-the-clock?

If you believe that your employer is not paying you for off-the-clock work, please call (866) 981-4800 or fill out the form on the right for a confidential consultation with a labor and employment attorney.

Important Note: This summary is intended to provide a basic overview of the typical types of employment cases handled by our firm. It is for informational purposes only and does not constitute legal advice.

Why Girard Gibbs LLP?

Girard Gibbs is a national litigation firm specializing in securities litigation, consumer class actions and complex business litigation. Girard Gibbs' managing partner Daniel Girard was voted one of Northern California's Super Lawyers in 2007, 2008, and 2009 by Law & Politics, recognizing him as one of the top 5-percent of attorneys practicing in Northern California.





Want more information about off-the-clock work?

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