California Employment Law

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My husband is an on call tow truck driver. The truck is at…

My husband is an...

My husband is an on call tow truck driver. The truck is at our house and he has a radio 24/7. He has worked almost 15 months straight without a regular day off. and with a total of 9 days off in the whole 15 months. His company is listed by FMCSA as Intrastate and he get salary of $39,000 per yr. what can he do to get time off. They say they cant get anyone to cover his area. We even moved to the area he covers as a requirement of his job.

Lawyer's Assistant: What state is this in? And how old is the truck?

California

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

At will

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Idk, he is just stressed out and cant look forward to anything but the next time the radio goes off and he has to run out the door.

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Answered in 6 minutes by:
9/15/2017
Law Educator, Esq.
Category: California Employment Law
Satisfied Customers: 125,999
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Verified

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

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Customer reply replied 10 months ago
OK so where is my answer? What rights does he have to get time off????????????

Unfortunately, the laws on at will employment allow an employer to dictate the terms and conditions of employment. If his company has him as an interstate driver, he could be exempt from overtime, but there is a likelihood he has been misclassified as a salary employee as he does not appear to cover his type of employment. The only thing he can do to try to get some relief is file a complaint with EDD regarding being misclassified as a salary employee and if they find he should be hourly they will make his employer go back and pay him for every hour he has worked, plus overtime. If his employer tries to retaliate against him for making the wage claim, he can sue the employer for such retaliation, as this retaliation is against the law.

Under CA law, he has a right to 1 day off out of seven days worked. If he is not getting that, then this too would be filed as a complaint with EDD.

Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.

Law Educator, Esq.
Category: California Employment Law
Satisfied Customers: 125,999
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Verified
Law Educator, Esq. and 87 other California Employment Law Specialists are ready to help you
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Customer reply replied 10 months ago
The company is listed as a INTRASTATE. so what does that mean to him.
Even if he is salaried he is entitled to 1 day off out of 7
Customer reply replied 10 months ago
Did you get my last question? I dont see it?
Customer reply replied 10 months ago
His company is an INTRASTATE so what does that mean to my husband, and even though he is salaried he is still entitled
to 1 day off out of 7 days? Can you give me the CA law statue # so we can site it to the employer?

Thank you for your reply. I am not ignoring you, I am trying to type your answer and need some time to do so.

Ask Your Own California Employment Law Question

Under CA Labor Code 551 says ever person employed in every occupation is entitled to one day of rest out of 7. Also see: Mendoza v. Nordstrom, Cal., No. S22461 (May 8, 2017). Salary employees are generally exempt from this requirement, BUT as I said it is likely he is being misclassified to try to avoid the hourly pay and overtime requirements which is why I said he also needs to file a misclassification claim with EDD wage and hour division.

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