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Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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Employee agreed and wanted to work more then 8 hour shifts

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Employee agreed and wanted to work more then 8 hour shifts in care home business, he was told we could not pay overtime for hours over 8 but he said he was fine with that, he would rather work longer days then come in for shorter days. We had changed our schedule recently and all our shifts are now shorter and no options for working longer then 6 hours at one time. He was not happy with this and is telling others, not us he is going to sue for unpaid overtime, he has worked for 5 months and has approx 30 hours that we should have paid the overtime rate. My question is if I pay him the overtime pay he is due now, Would he still be able to file a claim? Would paying him now instead of after we have been notified of a claim be better for the company in the long run and if so what should I tell him or document on the paystub when I pay him this overtime?
Should I hire an attorney now?

Losing sleep in California over this employee, thanks for your help
Hello and welcome to JustAnswer

I'm sorry to hear about your situation and hope I can help.

My goal is to provide you with excellent service today.

I need a bit more information from you before I can proceed to provide you with a complete and thorough answer to your question.

Have you approached this employee to obtain a settlement and waiver of his claim or were you just going to pay the overtime he alleges is due?

Does the employee currently work for you or not?
Customer: replied 3 years ago.

I have not approached employee, I did not want to make things worse. I should never have agreed to this from the start. He is still working although on vacation that was planned when he started working for us. I am not sure what to do, I really do not think he is not going to sign any waiver or settle with me. From what I have seen of him recently I believe he is the kind of person that is just waiting for an opportunity to make a quick buck and possible ruin a business on top of it. I am not sure what he is after, I just know that as a small business of this kind there is not enough money to fight and not much for him to win either.

My thought was to step up, admit I was wrong here, hopefully avoid a more costly issue for me by paying him the overtime now. I don"t know if I legally have a defense here. I agreed to let him work the overtime at straight pay.

Thanks for the additional information, I'll get back to you shortly.
Customer: replied 3 years ago.

thank you

Thank you; be back to you soon.

In order to prevent him from filing a wage claim or suing you, in addition to paying him the amount he is owed in overtime, you need to get him to waive any and all claims that he has for unpaid overtime against you. Otherwise, he could allege that he wasn’t paid for overtime even if you do pay him for it.

Unfortunately, it doesn’t matter if an employee agrees to work additional hours for overtime or not. An employee cannot waive his or her right to overtime, so despite his agreement with you, he would still be legally entitled to the amount of overtime that he wasn’t paid for those hours.

It would definitely be best to arrange for a settlement prior to him filing a wage claim, as you could face additional fines and penalties for failure to pay overtime if the claim is brought to the Division of Labor Standards Enforcement. In addition to the waiver, you should definitely document through payroll that you have paid him full compensation for the overtime.

I would suggest that you not hire an attorney (at any point) since you only owe for 30 hours of overtime, and hiring an attorney would likely be considerably more expensive and would probably not do anything in the long run. (He wouldn’t be able to prevent you from being liable for the unpaid overtime).

I realize the above information is not what you wanted to hear and I sincerely XXXXX XXXXX had better news to give you, but I hope you appreciate an honest and direct answer to your question. It would be unprofessional of me and unfair to you to provide you with anything less.

Please let me know if you have any follow up or clarifying questions as I want to ensure that you are completely satisfied with my service. Definitely contact me if you are contemplating leaving me a negative rating, as I’ll be happy to continue to address your concerns until you are satisfied with my service.

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Thanks and best of luck!
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