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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27887
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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If an employee is being paid a flat day rate for work as a

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If an employee is being paid a flat day rate for work as a production assistant, when are they entitled to overtime? For example, they are being paid $300 per day, Can that flat day rate be intended on including overtime within it or is it assumed that the $300 only covers 8 hours and the employee is entitled to anything beyond 8 hours at an overtime rate calculated off of that $300?
Submitted: 9 months ago.
Category: California Employment Law
Expert:  LawTalk replied 9 months ago.

Good morning,

I'm Doug, and I'm sorry to hear of the confusion. My goal is to provide you with excellent service today.

So long as it is stated that a flat rate of $300 per day is the wage, regardless of the hours worked, then as the employer, you are just fine, so long as there is not an hourly wage set and so long as the number of hours they work cannot possibly exceed the value of regular pay and overtime at minimum wage. If your state minimum wage is $10.00 an hour, and they had already worked 40 hours that week, then they could only be made to work up to 20 hours for the $300 on this particular day. Any time over 20 hours would have to be paid at time and a half of minimum wage.

You may reply back to me again if you have additional questions, and I will continue to assist you.

I wish you the best in your future,

Doug

Customer: replied 9 months ago.

Would it be possible for us to state that it is a "day rate of $300, hours 8 and 9 are included as overtime in that day rate, anything beyond 10 hours would be paid at an additional overtime rate" or is this then placing us out of a "day rate" classification and into hourly?

Expert:  LawTalk replied 9 months ago.

Good morning Meghan,

You are free to set a flat rate for the day. But again, you may never pay less than minimum wage for all the hours worked in a day/week. And in CA, as you likely are aware, there is straight pay up to 8, time and a half between 8 and 12, and double time for over 12 in a given day, and time and a half for over 40 hours in a week.

As soon as you try to tweak the system by telling them that after X number of hours you will pay overtime, you just defined an hourly wage from that $300 a day rate, and that will possibly get you in trouble. It would be much wiser to simply pick a flat rate---if you want a flat rate pay system---that can't exceed minimum wage based on a maximum number of hours that the employee will ever be asked to work.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you when our communication is completed.

I wish you the best in 2013,

Doug

LawTalk, Attorney
Satisfied Customers: 27887
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and 2 other California Employment Law Specialists are ready to help you
Customer: replied 9 months ago.

follow up question: what would the concern be with paying them on an "hourly rate" this way as opposed to a day rate? Would there be any negative impact to paying them hourly?

Expert:  LawTalk replied 9 months ago.

Hi Meghan,

The only difference would be that when you are paying them a flat rate a day, you are allowed to use minimum wage as a figure to determine overtime. When you pay an hourly wage, it is that hourly wage which determines the overtime pay and if the hourly is greater than minimum wage, your overtime expenses will be more.

However, the hourly wage route is easier to calculate and less likely to result in a wage payment error---especially if you are not using an accountant to do your payroll.

You may reply back to me again if you have additional questions, and I will continue to assist you.

I wish you the best in your future,

Doug

LawTalk, Attorney
Satisfied Customers: 27887
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and 2 other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 9 months ago.
Thank you for your positive rating of my service, Meghan. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should a future need ever arise. I am generally available at least 6 days a week, and often 7, and it would be my privilege to assist you again in the future.

I welcome you to request my assistance in any future legal questions you may have, by simply placing my name in the first sentence of your new question.


Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It would be tremendously appreciated.
Customer: replied 9 months ago.

Hello Doug I was wondering if you could answer another question for me. Additionally in CA (as some other states) it appears that there is a requirement to provide certain items on each wage statement. We have a standard pay stub plus a "recap" which lists additional information and is provided to the employee. The requirements for a CA wage statement are stated in either/or the recap or the pay stub, would this be ok or would all of the required information need to be on ONE document?

Expert:  LawTalk replied 9 months ago.

Hi Meghan,

As you are aware, CA requires that you provide an itemized listing of many different items with each paycheck you give an employee. The law does not require that you have the itemized items on a single sheet of paper---only that all the items be set out in writing each pay period with the check. You are free to use a re-cap attachment if the information required is not on the check stub itself.

The required itemizations are as follows:

Along with each paycheck, California law, labor Code Section 226 requires employers provide a written itemized statement containing nine pieces of information about that payment:

§226. (a) Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission, (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of his or her social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that is the employer and, if the employer is a farm labor contractor, as defined in subdivision (b) of Section 1682, the name and address of the legal entity that secured the services of the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee and, beginning July 1, 2013, if the employer is a temporary services employer as defined in Section 201.3, the rate of pay and the total hours worked for each temporary services assignment. The deductions made from payment of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement and the record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. For purposes of this subdivision, "copy" includes a duplicate of the itemized statement provided to an employee or a computer-generated record that accurately shows all of the information required by this subdivision.


You may reply back to me again if you have additional questions, and I will continue to assist you.

I wish you the best in your future,

Doug

Customer: replied 9 months ago.

so would it be ok if the recap states some but not all of the itemizations, with any missing itemizations being listed on the pay stub?

Expert:  LawTalk replied 9 months ago.
Good morning,

Yes, that is correct. So long as all required items are listed, you could, in theory, list them on a dozen separate sheets of paper and that would comply.

To be entirely correct, to the extent there is room on the check stub for all of the information, it should be there---but the critical issue is that every required item is provided in writing.

Consider stapling the separate sheet to the check stub so it is not misplaced. That will help prevent arguments that you didn't supply all of the information.

You might also consider getting different payroll checks that have sufficient room for all the information. They are available.

Doug
LawTalk, Attorney
Satisfied Customers: 27887
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and 2 other California Employment Law Specialists are ready to help you

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