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Dolan: Employees must be paid for extra work

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Employers could be required to pay overtime when they require workers to show up early. (Mike Groll/AP)

This week’s question comes from M.P. who asks:

Q: “I have been working for a moving company here in The Bay Area that requires the employees show up in the yard at 6:30 a.m., check the trucks, load moving blankets, wait for assignment to a job, and then drive the moving truck to the job, get gas, etc. We must be  there at 6:30 a.m., but they do not pay us for the time we are required to show up to the yard and for the drive to the job in the truck. We don’t start getting paid until we arrive on the job site to begin the move­, which is when they begin charging the customer. Is this legal? What are my rights?”

A: M.P., this question is one that presents itself frequently in the employment context. I appears that your employer wants to pay you only when it is getting paid for your services by the customer. That is not the way the law works.

Before I begin, I must make an assumption that you are not a union employee working under a collective bargaining agreement. If so, then your union can contract around state overtime laws (in general with some exceptions). Overtime compensation regulations are issued by the Department of Industrial Relations through what are called “Wage Orders.” Wage Order No 9­2001 covers the transportation industry.

Wage Order 9­2001 provides that eight hours of labor constitutes a day’s work, and employment beyond eight hours in any workday or more than six days a week in any workweek, or 40 hours a week, is permissible provided the employee is compensated for such overtime at not less than 1.5 times the employee’s regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday; for the first eight hours worked on the seventh consecutive day of work in a workweek; or for hours in excess of 40 hours in a week. An employer must pay double the employee’s regular rate of pay for all hours worked in excess of 12 hours in any workday, and for all hours worked in excess of eight hours on the seventh consecutive day of work in a workweek. Therefore, unless you fall within an exemption under Wage Order 9­2001, or you are covered under a collective bargaining agreement, it appears that you are entitled to compensation for all time between when you arrive in the yard to when you leave from work to go home.

The law looks to see if you are “working” or not during the time you claim wages. This is an area of much litigation, and guidance has evolved from appellate decisions establishing that overtime is due as long as the employee is under the employer’s control during the relevant period. Employers must compensate employees for all time worked, including “off-the-clock” work if the employer knew that the employee was working. As your employer requires you to be in the yard by 6 a.m. and knows you are there, you would meet that test. The issue then turns to one of whether your being there is for the benefit of the employer and the employer has control over you during that time period.

If you are ordered to be on the lot, even if you are waiting around, you are “on-call” and working, as you are not free to leave or otherwise engage in your own activities. The facts you provide lead to a strong inference that you should be compensated.

Finally, if you are loading the truck, gassing it up and/or transporting it to the work­site location, between there and the storage facility, or the delivery location, or driving it back to the yard, you are providing benefit for the employer and should be compensated according to the Wage Order. An employer must post the wage orders conspicuously in the workplace. Failure to post the Wage Order and/or pay the overtime, can, in addition to the obligation to pay unpaid wages (with interest), lead to civil fines and penalties.

Provide this to your employer with a request for unpaid overtime, report the conduct the Labor Commissioner or hire a trial lawyer to protect your rights. Termination for demanding payment of your unpaid overtime is unlawful and can lead to punitive damages as well.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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