Worker With Unpaid Overtime Should Get Lawyer

Question: I was once a non-exempt employee who, despite my requests, was not paid for overtime work performed from January through March of 1990. My employer even has a written policy, dated in February, 1991, providing for such overtime. I am being laid off in about three months and would like to know if I can again request the overtime pay I was denied in early 1990. Can I obtain copies of the time sheets that I submitted to our human resources department showing the overtime hours for this period? --F.C., Irvine

Answer: There is no doubt that you should have been paid your overtime compensation. The problem is that you have passed most of the statute of limitations deadlines for filing your claim. The deadline for breach of oral contract is two years, breach of a statutory duty requiring overtime compensation is three years, and breach of a written contract is four years from the date of the breach. It appears that you have passed all of these deadlines based on your employer’s failure to pay in early 1990.

However, you still might have a valid claim based upon the company’s written policy dated February, 1991. By putting the policy in writing, the company then created a new four-year deadline from that date to reclaim the unpaid wages. Since the Labor Commissioner will not handle a breach of contract action and your personal attempts to resolve it have not succeeded, your only recourse would be to go to an attorney.

California state law requires that the employer allow you to look at all relevant documents in your employee file and obtain a copy of any document that you signed. Put your request in writing to confirm that you made the request. The employer can be subject to liability if it fails to comply.

--Don Sessions, employee rights attorney

Mission Viejo

*

Question: I work for a utility that pays in 15-minute increments. The company says we have to work 7 1/2 minutes or more beyond our regular shift to receive overtime pay. We are hourly employees and I believe we should be paid for every minute we work. They chose to pay in 15-minute increments but why should I have to work for free?--D.P., Santa Ana

Answer: The federal and state wage and hour laws are very complicated and make it impossible to give a definitive answer to your question without a lot of additional specific information. However, it is true that under federal law an employer is generally permitted to exclude what are called “ de minimis ,” or minimal, time periods when computing whether its employees are entitled to overtime pay. Under that standard, your employer’s policy may well be a proper one. For a definitive answer to your question, you should contact either the Wages and Hours Division of the U.S. Department of Labor at (714) 836-2156, or the California’s Division of Labor Standards Enforcement at (714) 558-4115.

--Calvin House, attorney, Fulbright & Jaworski L.L.P.

Adjunct professor, College of Law

Western State University