How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask LawTalk Your Own Question

LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27889
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
15277592
Type Your California Employment Law Question Here...
LawTalk is online now
A new question is answered every 9 seconds

I have been in the same position since May of 2009. I am employed

Customer Question

I have been in the same position since May of 2009. I am employed in California and have been classified as Exempt the entire time. Last week my manager notified me that due to the state of California raising the minimum salary for Computer Professionals I was going to get an increase to that minimum. I looked into the minimum and found that for the past 2+ years I was paid below the minimum and did not receive any overtime. Is my employer responsible to pay me for my either overtime for those years or increase my salary for those years to the minimum as required by California?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  LawTalk replied 2 years ago.
Good morning,

I'm sorry to hear of your dilemma.

Oh my, did you discover a major blunder!! Under CA law, if you are not paid the minimum wage demanded for the employer to qualify you as salaried exempt---then it is unlawful for them to do this. Now, while this arguably was a mistake on their part, and not deliberate---it still violated the law and you may make a claim based on your hourly pay rate (salary divided by regularly scheduled hours) and demand that you be paid overtime (time and 1/2) for ALL the additional hours you worked over 8 in a day and over 40 in a week for the past 2 years from the date that you file a lawsuit seeking the back overtime pay.

Additionally, under federal laws (FLSA), you are also entitled to what is called Liquidated damages. Liquidated damages is equal to the amount of back wages that they owe you and must be paid in addition to the wages themselves---so you essentially get double overtime wages in the claim.

Depending on how much overtime you actually worked over the past 2 years the potential recover could be huge.

Before you agree to anything with the company, sit down with a local Employment Law attorney and discuss making a demand on the company directly for the back overtime and the liquidated damages. You do not have an obligation to accept the difference between what they paid you and what they should have been paying you. And, I suspect that claiming the overtime will be a much greater monetary award.

And finally, it is unlawful for the company to penalize you, discriminate against you or terminate you based on your demand that they compensate you based on the violation of the wage laws.

I wish you the best in 2012, and success in your claim.

Because I help people here, like you, for a living---this is not a hobby for me, and I sincerely XXXXX XXXXX abiding by the honor system as regards XXXXX XXXXX I wish you and your family the best in your respective futures.

Would you be so kind as to Accept my Answer so that I may be compensated for assisting you? Bonuses for greatly informative and helpful answers are very much appreciated. Thanks Again,

Doug
Customer: replied 2 years ago.

During those years the numbers of hours worked was not tracked, how would the number of hours be estimated? Is it my best estimate vs the companies best estimate?

Expert:  LawTalk replied 2 years ago.
Good morning,

Yes, it is your best estimate versus the company's. This is where witnesses as to your typical routine will be important---AND, as the company was the one who violated the law, and they chose not to track your hours worked---which they should have anyway---they will have the burden of disproving the estimate that you make. This is another good reason to get yourself a local attorney---to argue on your behalf and accumulate the evidence/witnesses to back up your estimate.

I wish you success.

Please, remember that I only receive credit for helping you when you Accept my answer. Until then your payment is simply held by JustAnswer.com and not shared with me. So, please click the ACCEPT icon if my Answer has been informative, and helpful to your understanding of the law. Thanks again.

Doug
Customer: replied 2 years ago.

If they present me with a check for the difference between my salary and the minimum for the back pay and I cash that check, would that constitue a settlement? Would I still have recourse?

 

Expert:  LawTalk replied 2 years ago.
Good morning,

Are we dealing with facts now, or with what-ifs?

I think that is critical that we stick to facts in existence at this moment.

Any time you ask a hypothetical, it leaves open the possibility of adding additional facts and what-ifs, or deleting certain facts, ad infinitum. Once you do that, the discussion of the law becomes quite muddied---to the extent that you can no longer safely anticipate how the court might rule.

If you accept payment and then sue---you are guaranteed that they will argue a settlement occurred. (That alone could draw out your case for 1-3 years or longer)---not to mention, if you do take money now---you may not find an attorney willing to take the case unless you pay them hourly. At an hourly rate, a case that is hard fought and lasts a year or more, can easily cost you $25,000 in legal fees, or more. The risk of losing the argument alone could prevent you from even considering it.

Do you sign a settlement agreement when you get the check you mention----does it contain adequate reference to CA law to make the settlement enforceable, will someone testify that you verbally acknowledged that it was a release of all claims you have?

In short, do not let your desire for quick money railroad your chance to perhaps make 10 times that much on the hope that a court will not find that you waive a future right by taking money now. That I can not promise you that it will not occur.

Quite simply, if you have not done it---don't. Not before you sit down with an employment lawyer, go over ALL of the facts and get the information which will allow you to make an informed decision

Because I help people here, like you, for a living---this is not a hobby for me, and I sincerely XXXXX XXXXX abiding by the honor system as regards XXXXX XXXXX I wish you and your family the best in your respective futures.

Would you be so kind as to Accept my Answer so that I may be compensated for assisting you? Bonuses for greatly informative and helpful answers are very much appreciated. Thanks Again,

Doug
LawTalk, Attorney
Satisfied Customers: 27889
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

Doug,


 


how can I start a new question with, continuing on this thread?


 


Bottom line, I need more information on this, but want to continue with you and realize I need to pay for the additional information.


 


Phil

Expert:  LawTalk replied 2 years ago.
Good morning,

Just post a new question with my name in the first sentence and I can answer it.
|
Doug
Customer: replied 2 years ago.
I've posted the new question, using you name.
Expert:  LawTalk replied 2 years ago.
I'll look for it.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Attorney

    Satisfied Customers:

    869
    JD, 16 years experience & recognized by ABA for excellence in employment law.
  • http://ww2.justanswer.com/uploads/PI/PIExpert/2012-7-1_152453_Attorney.64x64.jpg Brandon, Esq.'s Avatar

    Brandon, Esq.

    Lawyer

    Satisfied Customers:

    332
    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • http://ww2.justanswer.com/uploads/PH/phoenixrising119/2012-7-26_11214_043.64x64.jpg melissamesq's Avatar

    melissamesq

    Attorney

    Satisfied Customers:

    47
    Represent clients to maximum recovery in employment cases.
  • http://ww2.justanswer.com/uploads/IG/Iggy1001/2013-11-20_23344_JApic.64x64.jpg Joseph's Avatar

    Joseph

    Lawyer

    Satisfied Customers:

    3602
    Extensive experience representing employees and management
  • http://ww2.justanswer.com/uploads/JK/jkiani22/2013-11-18_15348_JacobKiani1copy2.64x64.jpg jkiani22's Avatar

    jkiani22

    Attorney

    Satisfied Customers:

    24
    Attorney
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel

    Lawyer

    Satisfied Customers:

    32
    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.