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Legal Counsel
Legal Counsel, Lawyer
Category: California Employment Law
Satisfied Customers: 103
Experience:  California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.
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If i worked for a company that considered me a independent

Customer Question

If i worked for a company that considered me a independent contractor but was hourly and
told when to work and what hours but was paid straight time no matter how many hours
was told to work . The last year is the only time was 1099, my question is am i entitled to
overtime pay from this company
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Legal Counsel replied 1 year ago.

Legal Counsel : Hello. Based on what you describe, you should not have been considered an independent contractor, but should have been considered an employee. You should have been paid overtime for all hours worked more than 8 hours in a day or more than 40 hours in one week. You can and should file a claim with you state labor board to recover the overtime pay to which you are entitled. If you are still employed with the company they should be paying you over time and for what ever overtime they haven't paid you I believe you can go back at least 2 or 3 years and be paid any overtime that is owed you for any hours that you worked in excess of the number of hours I described above.
Legal Counsel : You may also be entitled to what are called "penalties" which the employer will have to pay you for every day they failed to pay you your proper wages, up to 30 days of penalties. I suggest you file a claim with you state labor board to collect the overtime to which you are entitled. Do your pay records show how many days you worked each day and what you were paid for those hours? If the records show, for example, that you worked 10 hours a day and were paid the same hourly wage for all of those ten hours, then you should have been paid one and one half your hourly rate for the extra two hours for that day.
Legal Counsel : I notice that your question is under the " California Employment Law" subject, but your information says you are asking about "Colorado". Is the company a California company?
Customer:

I only have some of my records copys of checks and time sheets never got check stubs

Legal Counsel : For how many years have you been employed with them?
Customer:

was for 3 and halfyears been gone for about 2 months

Legal Counsel : What you may be able to do is look at your daily calendars for the previous years, including this year and write down what hours you recall working on each day and write down on the calendar for each day the hours you recall working. Plus you should be able to retrieve your time records from the employer. I'm sure they have records of the hours you worked. Is there a way you can tell them that you need your time records for tax purposes? They should give you copies of your time records upon your request, no matter what the reason. So, even if you don't have all the records they should have them. Over those years you worked for them how many hours do you recall working each day?
Customer:

can i go back from beginning of employment

Customer:

average 10 to 12 hours a day a lot of saturdays and sundays one two week time turned in 166 and half hr

Customer:

they have not spoken to me since they had no more work

Legal Counsel : It depends on whether you are filing as to a California employer. Under California law, you can go back three (3) years. So you wouldn't be able to go all the way back to the beginning of your employment but can go back 3 years.
Legal Counsel : That is a lot of overtime. I suggest you go through your daily calendar for those 3 years and compute how many hours were overtime and file a claim. The labor board will accept the employee's records unless the employer has accurate records. Once you file your claim, the employer will be asked for their records. Their records should accurately reflect all of the hours you worked.
Legal Counsel : Do you have any reason to believe that they would falsify your time records and not submit your actual hours worked?
Legal Counsel : if you belive they might falsify the records, then you need to go through your calendars for the three years back and do your best to record what you recall being the hours you worked.
Customer:

I guess the next step is to file a claim do you have any idea how long they have to right this .And i don't put anything past them


but they were all company checks with hours and rate of hourly pay

Legal Counsel : Another way to calculate your hours, if you have no other way of recalling your hours, is to look at the 1099s you were given for each year and you can divide the total amount paid to you by your hourly rate to compute the total number of hours you worked in one year. You could then divide that by 52 weeks to get an average of how many hours you worked each week. I'm sorry there's sort of a delay between my answers and your questions. I will now type an answer to your question about how long it will take for the claim to be paid.
Customer:

I was only 1099 this last year I was just wondering if this could take years or months

Legal Counsel : Once you file a claim, the labor board will begin its "investigation" of your claim and notify the employer of your claim. The employer will generally have 30 days to respond with copies of your time records. Often times if the employer asks for an extension they may be granted an extension depending on the reason for their request for an extension. Once the employer responds, the labor board will futher investigate your claim by comparing the hours you claim were overtime hours with the employer's records of your hours.
Customer:

Okay all i can do is see what they do like i said i only have 1099 from 2011 and some copy's of time sheets and copy's


of some checks i have taken

Legal Counsel : It will and should only take a matter of months, but just like anything that involves hearings and two parties against each other, if one party does not accept the findings of the labor board, that party has the right to a hearing. The labor board has certain time limits that are usually 30 day time periods. Once they compete their " investigation" they will decide the amount of overtime due you. They will notify the employer and the employer will generally have 30 days to respond to the labor board's findings by paying the overtime hours and any penalties that are assessed.
Customer:

Thank you very much you have answered my questions if i had any grounds to stand on and if i should go to the


department of labor

Legal Counsel : At the least, do the calculation I suggested as to your 1099 for 2011. Please also try to go back over your calendars to recall what hours you worked each day or each week. You can also use the checks that you do have and see if those checks show you are due overtime and in your claim state that that was generally what you recall your hours were for each week. Unless the employer can show otherwise, the labor board will accept your records. I believe it is worth it for you to file your claim. Even if it takes a few months, you are entitled to those wages.
Legal Counsel : Do you have any more questions or do you believe I have answered your questions. I don't want to close our chat unless you are satisfied and have the information you were seeking.
Customer:

my figures show me an average of 47.70 hours for 2011 per week

Customer:

no i have no more questions thank you very much

Legal Counsel : So at the VERY LEAST for 2011 , you have almost 8 hours of overtime for 52 weeks. Even T that number it is worth your time to file your claim. If you have further questions, don't hesitate to ask another question. Please accept my answer and rate my service. I hope you believe I have given you excellent service. I wish you the best outcome on your claim. Please do pursue it.
Legal Counsel, Lawyer
Satisfied Customers: 103
Experience: California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.
Legal Counsel and 2 other California Employment Law Specialists are ready to help you
Expert:  Legal Counsel replied 1 year ago.
Hello again. Thank you so much for accepting my answer and for rating my service. I greatly appreciate it. Please know it is an honor to be able to assist you. And if you have any further questions as you proceed with you wage claim, please do not hesitate to ask me. Sincerely, Legal Counsel
Expert:  Legal Counsel replied 1 year ago.
Dear Ron,

I am just checking in with you to see how you are doing as regards being able to calculate all your hours for the years you are entitled to overtime pay. I don't intend to put pressure on you. I just want you to know I am here if you have additional questions about how to file your claim.

I'm sure you are busy with all the other stuff in life, but hopefully, you will have the time to compute your hours and file your claim If you need any further assistance in filing your claim, or you find it confusing, I am avaiable to answer any questions you may have as you proceed.

Again, it's okay even if you have to "estimate" your hours. If the employer cannot show you did not work the hours recorded and calculated, the labor board will presume your records are correct.
Best regards, Legal Counsel

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