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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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My husband works for a contractor who is based in NY. We live

Resolved Question:

My husband works for a contractor who is based in NY. We live in CA. The work they did was in New Orelans, LA. They install security systems in the airport and have to work at night while the airport has no flights coming or going. My husband worked 20 hours straight. He was paid his regular hourly wage for the entire 20 hours. His previous employer paid straight pay up to 8 hours. Time and 1/2 for 8-10 hours and double time for 10+. Shouldn't he have been time 1/2 for at least anything over 10 hours???
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to answer your question.

Is your husband an independent contractor (paid with a 1099) or an employee (paid with a W2)? Also, does his job principally involve the management of other workers?

I very much look forward to assisting you regarding this matter.
Customer: replied 1 year ago.


He is a w-2 employee

Expert:  Patrick, Esq. replied 1 year ago.
Thank you for your reply.

In the state of California, W2 employees are entitled to overtime for all hours worked in excess of 8 per day, regardless of the total number of hours worked in the week, unless the employee is specifically exempt from overtime. It doesn't matter where the employer is based--if the employee is working within the state, California law applies.

California overtime law represents a departure from the overtime laws in many other states, which require overtime to be paid only when the weekly total of hours worked exceeds 40. This may explain the confusion of your husband's New York employer.

An individual in your husband's circumstance is entitled to overtime unless an overtime "exemption" applies. Overtime exemptions are narrow, and the only one likely to apply is the one concerning management employees.

California law provides that in order to be exempt pursuant to the managerial exemption from overtime, an employee must spend more than 50 percent of his or her time performing the following duties.

- Customarily and regularly directing the work of at least 2 or more employees
- Customarily and regularly exercising discretionary power
- The authority to hire and fire employee
- The ability to make comments and suggestions about personnel matters that are given weight by the employer.

The employee must make a salary of at least $640 per week to be eligible for the exemption.

If your husband is being paid on a straight hourly basis or does not satisfy the above-stated criteria, the managerial exemption would not apply. Here is a list of the other overtime exemptions, though it would not seem that any would be relevant: http://www.dir.ca.gov/dlse/faq_overtimeexemptions.htm

Since your husband worked more than 8 hours in a day and is likely not exempt from overtime, he would have a claim for unpaid overtime which he could bring through the Department of Labor Standards Enforcement. To file a wage claim with the DLSE, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

His employer will be legally prohibited from retaliating against him for making a claim to the Labor Board.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

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

Very best wishes to you.
Patrick, Esq., Lawyer
Satisfied Customers: 6786
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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