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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7352
Experience:  Significant experience in all areas of employment law.
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I work for a community hospital that is privately owned. Recently

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I work for a community hospital that is privately owned. Recently it has come to light that it is hospital policy to "change" the time card values in order to comply with state regs. ie, you did not clock out for lunch during an 8 hour period because you did not have a lunch. Before you are paid the "Timekeeper" adds the deducted time onto your timecard without notifying the employee of the change. Also I am a per diem employee with no benefits since my date of hire last year. However, I work 40+ hours weekly. Can they continue to deny me benefits or at some point do they need to make me a full time benefitted employee if I am doing the same job as the person next to me for the same hours
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Good afternoon and thank you for entrusting me to answer your question. I will do everything I can to assist you.

Before I provide an answer I'd like to clarify my understanding of the facts. Are you saying that your employer is deducting hours from your timecard when you fail to clock out on your lunches? Are you working through lunch? Are you inquiring as to whether you are entitled to be paid for your lunch time?

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


Yes, it is currently hospital practice to clock employees out or deduct time for lunches that have not been taken prior to submitting the time for our paychecks. I found this out while reviewing my paycheck and noticing that I had not been paid for hours that I worked. I was told that it is policy to deduct the 30 minutes prior to submitting the time. I am guessing they do this hospital wide. Is this legal? Can they change my timecard without my permission.


 


Also there is the question about my being non-benefitted yet working a 40+ hour week.


 

Expert:  Patrick, Esq. replied 1 year ago.
Gina,

Thank you very much for your reply. Has your employer made it clear that you are supposed to be taking a lunch and are you disregarding that directive? If so, is it because you are being encouraged or pressured to disregard the official lunch policy? If you are being encouraged or pressured, what specifically is your employer doing to accomplish that?

Sorry to be asking such specific questions, but the CA Supreme Court recently addressed this issue and the law, as it presently stands, is fairly nuanced on this point.
Customer: replied 1 year ago.


Yes, I should be taking a lunch but there is often not time to do so during my day. I didn't ask to be paid "Overtime" just the 30 minute time that I worked. I am directed to take my lunch but there isn't time during my day and I chose to work through this 30 minute time period so that I can leave on time.

Expert:  Patrick, Esq. replied 1 year ago.
Thank you very much for your clarification.

Federal and state law require employers to pay employees for all time the employees are "suffered or permitted to work." An employee need not work with express permission in order to be entitled to pay. If they are working with the employers knowledge, as appears to be the case in your circumstance, they are entitled to be paid because they are working with implied permission.

Prior to the CA Supreme Court's recent ruling in Brinker Restaurant Corp. v. Superior Court, an employer in this circumstance would not only be liable to pay hourly wages to employees who work through lunch, they also would have been penalized for not "providing" lunch. However, the Brinker decision made clear that an employer satisfies its obligation to "provide" a lunch simply by making lunch time available. The employer has no obligation to "ensure" the employee actually uses that time to eat lunch.

The Brinker decision noted, you seem not to be concerned with obtaining penalties for your employer's failure to provide a lunch and concerned primarily with simply being paid your hourly wage for that time. You would be entitled to that, and the Brinker decision does not affect you in this respect. Your employer cannot deduct from your paycheck for work you performed during your lunch provided such work was performed with the knowledge of the employer.

Your recourse in this circumstance would be either to sue in civil court for unpaid wages (you'd be entitled to attorney fees if you prevailed) or to file a wage claim with the DLSE, which most claimants pursue without the assistance of an attorney at all.

To file a wage claim with the DLSE, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

With regard to receiving benefits, your employer is under no obligation to provide them to you, even if they are providing benefits to other similarly situated employees, unless you can demonstrate a discriminatory basis for the denial. "Discrimination" occurs if the basis relates to your race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation. Unless you can connect the denial of benefits to one of these "protected traits" and do so by a preponderance of the evidence (the legal standard for a plaintiff to prevail in civil court), you would have no legal recourse on this issue.

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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Patrick, Esq., Lawyer
Satisfied Customers: 7352
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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