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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 31668
Experience:  JD, 16 years experience & recognized by ABA for excellence in employment law.
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Hello, My family and I own 5 restaurants. Each restaurant

Resolved Question:

Hello,

My family and I own 5 restaurants. Each restaurant is their own individual corporation. We set it up that way on the advice of our business attorney at the time(this was 1990). My question is this: If we have an employee work at one location for 8 hours and then 4 hours at the other in the same day(by his request for more hours) are we violating California labor laws? I have asked many lawyers this question and have been unable to get a straight answer....Also there are many laws that say "If you have over 50 employees you need to comply with....." we have mostly ignored that because each location has less than 50 employees...

Each location has their own tax ID number, payroll, etc...

Thanks

Ben
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Tina replied 1 year ago.
Hello and welcome,

It is a somewhat complex issue and there can be some gray areas involved.

With regard to federal overtime laws, the following criteria would typically apply and the employee normally would be entitled to overtime for work performed in excess of 40 hours per week:

The fact that employees who are employed jointly by two or more employers are entitled to overtime has been established both by the courts [Walling v. Friend, et al.,156 F. 2d 429 (C.A.8)] as well as by amendment to the Act.

Paragraph (b) of Section 791.2 provides the following three criteria to determine if a joint employment relationship exists:

  • The employers share the services of the employee; or
  • One employer acts directly or indirectly in the interest of the other employer in relation to the employee; or
  • The employers share control of the employee because one employer controls, or is controlled by, the other employer, or all of the employee’s employers are controlled by another company.
  •  

    Here is a link that provides this information:

     

    http://www.payroll-taxes.com/articles/183-overtime-and-multiple-employers.htm

     

    CA law applies a similar test. The integrated enterprise test evaluates the entire relationship between the employers in its totality. Courts have considered four factors in determining whether two or more entities will be treated as an “integrated enterprise.” The presence of all these factors is not necessary for employers to be found as a single employer. These factors include:

     

    1) common management
    2) interrelationship between operations
    3) centralized control of labor relations
    4) the degree of common ownership/financial control

    Here is a link that provides these factors and additional information in determining whether the employee should be paid overtime for hours in excess of 8 per day given the common ownership/management of the companies:

    http://www.asianjournal.com/consumer/atty-conrado-qjoeq-sayas/17085-two-jobs-one-parent-company-should-overtime-be-paid.html

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    Tina

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    Tina, Attorney
    Satisfied Customers: 31668
    Experience: JD, 16 years experience & recognized by ABA for excellence in employment law.
    Tina and other California Employment Law Specialists are ready to help you

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