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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7105
Experience:  Significant experience in all areas of employment law.
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My husbands company is a constructtion company and he works

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My husband's company is a constructtion company and he works in the field. They tried to exempt salary him and found out they couldn't it was illegal. They then told him his position was ending and said he could have another position which was salaried but have him doing the same exact job. His boss has threatened him with beating him up and throwing him off the roof. They also have not been paying the prevailing job rate on certain jobs, instead telling employees to clock in as something theY aren't at a lesser rate. I am wondering do we have cause for a law suit?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. My goal is to answer your question completely and thoroughly and to provide excellent service.

I am very sorry to hear about your husband's employment situation and hope I can provide some helpful information.

It is illegal to mis-classify a work as exempt so as to avoid paying overtime. Since you state that your husband's employer "re-hired" him in a "new" position but his duties were essentially the same as his previous position, which was not exempt, then it would appear that this attempt to rehire and reclassify may be an illegal attempt to avoid paying overtime. This is a reportable offense and if the Department of Labor determines that your husband's position is not exempt, he would be entitled to back pay for all overtime worked plus interest.

For the purpose of determining whether your husband is exempt, the Labor Board will examine whether the actual duties your husband engages in fit within one of the following categories of jobs: http://www.dir.ca.gov/dlse/FAQ_OvertimeExemptions.htm

To the extent that your husband is not being paid the prevailing rate on public contracts, that too is illegal and would entitle an individual in your husband's position to back pay in the amount of the difference between his actual wage and the prevailing rate.

As extreme and outrageous as it is for a boss to yell and threaten to "beat up" employees, this is typically not illegal unless actual physical force is employed, in which case that conduct would constitute an assault and battery. Contrary to what most people believe, there is no requirement that an employer be nice or courteous in the workplace and verbal threats and insults are only illegal if they attack an employee on the basis of that employee's race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation.

So to summarize, it is illegal for an employer to mis-classify workers as exempt so as to avoid paying overtime. The Labor Board will examine the job duties your husband actually takes on, not merely what is title is. An individual in your husband's circumstance must also be paid the prevailing wage on all public contracts. Unfortunately, however, no legal cause of action would typically arise from verbal abuse unless it either accompanied physical abuse or targeted your husband on the basis of his race, religion, sexual orientation, etc., as discussed above.

To file a wage claim with the Department of Labor Standards Enforcement, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 7105
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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