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I have worked for the past nine years for a company in California. At the end of 2005, they sent a memo around that stated that from then on, we could only carry forward a week of our vacation. At the end of 2006, I had over two weeks coming. I was actually unable to take vacation because the situation in my department was such that my desk would not be covered if I did so. What are my rights?

By Deskin Law Firm
If vacation pay is provided as an employee benefit, earned but unused pay cannot be forfeited. But your employer can cap the amount of vacation pay that you earned. When an employer does provide for paid vacation time, this time constitutes earned wages.

Can my employer require me to work overtime?

By Deskin Law Firm
Yes, an employer may dictate the employee's work schedule and hours. Additionally, under most circumstances the employer may discipline an employee, up to and including termination, if the employee refuses to work scheduled overtime.
What other jobs are non-exempt and entitled to overtime?

What kind of jobs are considered non-exempt and therefore entitled to overtime?

By Deskin Law Firm
Some examples of positions that are usually non-exempt and therefore entitled to overtime include:
- Bookkeepers, secretaries and clerks of various kinds who perform routine clerical duties,
- Salaried sales people in retail, wholesale or service establishments (like Radio Shack, Walmart and Target, as examples).

What other jobs are non-exempt and entitled to overtime?

I would like to get a lunch break during the day, but my employer refuses to give one to me despite the fact that I work 10 hours a day without any break. Is that legal?

By Deskin Law Firm
If you work more than five hours per day, you are entitled to a lunch break (or meal period or rest period) of at least 30 minutes. If you work 10 hours in a day, you are entitled to another 30 minute lunch break. You should also know that the law protects you if your employer decides to retaliate against you by firing you or otherwise discriminating against you after you have alerted your employer to your desire to have a lunch break and be reimbursed for lunch breaks you have not been given.

Often times it is intimidating to approach an employer who you rely on for a pay check to give you something that seems as trivial as a lunch break, but it is your right and his obligation to give it to you. To make it easier, keep in mind that there is strength in numbers. If there are a number of people who work for your employer who are not getting lunch breaks and we are able to approach your employer as a organized group, it is often easier to convince employers that it is their best interest to fix the situation rather than risk the repercussions of many of his employees being upset. You have leverage as a group that you may not have as an individual.

Having Lunch Breaks is a Right, but how do I get them?

I manage an apartment building. My duties include maintaining the grounds, cleaning common areas, showing apartments to tenants, verifying references and collecting rents, among other things. Am I Exempt from Overtime?

By Deskin Law Firm
From the list of duties listed above, your work does not require the exercise of discretion and independent judgment. It would seem that you are a nonexempt employee and therefore entitled to overtime.

Am I Exempt or Non-Exempt for Overtime?

I Make $103,000 Per Year. Can I still get Overtime?

By Deskin Law Firm
If you make over $100,000 per year, whether through salary, commission, and/or non-discretionary bonuses, you are considered highly compensated. Highly compensated employees are exempt from overtime if you customarily and regulary perform one or more of the duties of an executive, administrative or professional employee.

Do I perform one or more of the duties of an executive employee>

I want to figure out whether I am supposed to get overtime. How do I do that?

By Deskin Law Firm
There are many steps involved in determining whether you are entitled to overtime, but if you go through each step you can figure it out. First you have to determine whether you are exempt or non-exempt from overtime. Next, you should look at whether your employer has not paid you properly for the hours you have worked.

How do I go about getting my overtime?

I work for a garment manfacturer and we do not get overtime despite working long hours. Am I entitled to overtime?

By Deskin Law Firm
Workers of a garment manufacturer are entitled to overtime. You are in a particularly good situation to get your overtime paid. You can get your overtime either from your direct employer (the garment manufacturer) or if a retailer contracted with your employer to make a particular line of apparel according to the retailer's specifications or to put the retailer's label on a particular line of apparel produced by the manufacturer, the retailer is also liable for your overtime.

How do I go about getting my overtime?

My employer does not like that I am looking to get paid for the overtime they made me work. Can they fire me or make trouble for me at work for trying to get paid for my overtime?

By Deskin Law Firm
It is unlawful for anybody to fire you or otherwise discriminate against you for filing a complaint or lawsuit for overtime, or for testifying or planning to testify for an overtime lawsuit. If your employer retaliates against you they may be forced by the court to reinstate you, promote you, pay you lost wages, or pay you a lump sum of money.

How do you determine if you are entitled to overtime?

My boss has told me that the employment agreement I signed with the company specifically says that I have waived any rights to overtime by accepting employment. Is that legal?

By Deskin Law Firm
Overtime protections are not waivable and may not be abridged by contract, including collective bargaining contracts. The existence of a written agreement purporting to establish an independent contractor relationship is not determinative. You must look behind any such agreement in order to examine the facts that characterize the parties’ actual relationship and make their determination as to employment status based upon their analysis of such facts and application of the appropriate law.

Are You Entitled to Overtime Even Though Your Employment Contract Says You Are Not?

A temporary agency placed me in a job with one of their clients. Their client made me work long hours and did not pay me overtime and then to top it off, he said that I was "a lazy white person." Both the client and the temp agency are pointing the fingers at the other. Who do I turn to to deal with my overtime and discrimination claims?

By Deskin Law Firm
The law says that where one employer sends you to do work for another employer, and both have the right to exercise certain powers of control over you, that you may be held to have two employers. In such cases, you may look to either or both employers for discrimination and overtime claims.

Which one of my Employer is Subject to Discrimination Laws?

I have an agreement with my employer that says that I am an independent contractor. I have been working for him for 3 years and he treats me like all of the rest of the people who are employees. Am I am employee or an independent contractor when deciding if I should get overtime?

By Deskin Law Firm
It is important to know that an independent contractor does not get overtime, only employees can get overtime - and even then, only certain employees. The language in the contract that you have with your employer that calls you an independent contractor does not necessarily mean that you are in fact an independent contractor either.

There are some factors to consider in determining if you are an independent contractor or an employee.
- Whether your employer have the right to control the manner and means of you performing your work. This is the most important consideration.
- Whether the employment relationship can be terminated at will.
- Whether you engage in a business that is separate and distinct from your employer's business.
- Whether the work is done under your employer's direction or without supervision.
- Whether you work at your employer's workplace on your employer's computer and with your employer's materials.
- Whether you have been working for your employer for a long time.
- Whether you can hire or fire others.
- Whether you are paid by time, piece, rate or job.
- Whether you and your employer believe you are creating an employment or independent contractor relationship.

Are you Entitled to Overtime?