Forced Overtime Requires Pay Above Minimum Wage

Question: I currently work as a gas station mechanic. My hours are 7 a.m. to at least 5 p.m. Often, I am “asked” to stay later--six days a week, and I am not paid any overtime pay. My employer does not even have a time clock and keeps no accurate record of my hours worked. Is this legal? Also, is it legal for shop owners to run special discounts on labor (i.e., brake special for $40 labor, when the labor guide calls for $82.50 for labor)?

These specials require me to be paid less than I should receive. Because my pay is based on what the shop charges the customer, when the station discounts labor, it costs me money. I believe in capitalism, but this is ridiculous. If this isn’t legal, is there any way of forcing my employer to pay overtime without going to the totally useless labor board?

--F.G., Santa Ana

Answer: Employers are required to keep records of the hours worked and the wages paid. Although the exact method that your employer uses to calculate your wages is not clear, there does not appear to be any problem with the method itself.

However, the total wages paid divided by the hours worked cannot be less than the prevailing minimum wage, which is currently $4.25 per hour. Moreover, you are generally entitled to overtime pay for all hours worked in excess of 40 hours per week. Your conclusion that the Department of Labor is “totally useless” is unfounded. I think you will find that filing a claim with the Department of Labor is the least expensive and most expeditious method for resolving any dispute that may arise.

--Calvin House, attorney, Fulbright & Jaworski L.L.P., adjunct professor, Western State University College of Law

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Question: What are the regulations governing the use of state short-term disability benefits? A couple of years ago I was hospitalized for minor surgery. I was told by the human resources representative at my former job that because I had been admitted to the hospital, I was considered temporarily disabled and unable to work. Because of this temporary inability to work, the company required me to apply for State Disability Insurance benefits and forbade me to use sick time.

Earlier this year, I was again hospitalized. This time, however, the rep for my current employer told me that I must deplete all of my accrued sick time before applying for SDI. In the meantime, I have used all of my sick time and no longer have enough time accrued to even take a day off if I have a cold.

Is it possible to retroactively apply for short-term disability benefits? How would you recommend I do so when my company does not appear to want to cooperate? Obviously, I would prefer to be paid from SDI for the term of my illness and attempt to get my sick time credited back to me. Also, in both instances, I was a salaried employee.

--P.F., Anaheim

Answer: Under the new Family and Medical Leave Act, an employer may require that an employee on a medical leave of absence use up all accrued vacation and sick leave.

Moreover, under the facts as you describe them, it does not appear possible to apply retroactively for short-term disability benefits. Under California law, an individual with an injury not related to work must meet several statutory requirements in order to be eligible for State Disability Insurance (SDI) benefits. Among these are that you must file the SDI claim not later than 41 days after the first day for which benefits are payable. It may be too late to file for your hospitalization earlier this year.

In addition, you must have suffered a “wage loss” during the period in which benefits are claimed. Since your company provided you with sick pay benefits, however, you were ineligible for SDI benefits on each of the days for which you received sick pay since you did not meet the statutory requirement of incurring a “wage loss.”

California Unemployment Insurance Code section 2656 states that if an employee receives “regular wages” during a time of disability, he or she is ineligible for SDI benefits because the employee has not suffered a wage loss. Sick pay benefits that are approximately equal to an employee’s regular pay are deemed “regular wages,” under this provision.

--James J. McDonald Jr., attorney, Fisher & Phillips, law instructor, UC Irvine

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Question: A question recently came up from one of our employees about how many days in a row they can be scheduled to work. Our position is that there is no limit on the number of consecutive days worked as long as the employee is paid properly for overtime, shift differential, etc. But I thought I read recently that there was a limit of 10 days. What is correct?

--J.R., Irvine

Answer: Neither of your answers is entirely correct. There are California labor codes that say every person employed in any occupation is entitled to one day’s rest in a seven-day work week. Therefore, no employer of labor shall cause its employees to work more than six days in a seven-day work week.

However, an exception can be permitted, allowing an accumulation of days of rest when the nature of the job reasonably requires the employee to work seven or more consecutive days, provided that in each calendar month the employee receive days of rest equivalent to one day’s rest in seven, or at least four days off each month.

There are other factors, such as collective-bargaining agreements and health and safety concerns, that may alter or modify employee work schedules as well.

--Elizabeth Winfree-Lydon, senior staff consultant, The Employers Group