Cohelan Khoury & Singer, A California Class Action Law Firm: 888-808-8358

Frequently Asked Questions

What is a Class Action?

A "class action" is a lawsuit brought by one or more claimants as representatives for an entire group of claimants who have been affected by a common violation but who do not need to participate in the lawsuit in order to be awarded a recovery. A class action suit may occur when many different people combine their similar complaints. This saves court time and allows a single judge to hear all the concerns at the same time, and come to one settlement or resolution for all parties. This process creates a procedure for redressing a relatively small claim that might otherwise be too costly to litigate on an individual basis.

The courts closely monitor class action cases. A case may not proceed on a class basis until the court certifies that it meets the requirements of a class action. When a trial court certifies a case as a class action, there is no necessity to "join" that Class. A class member is automatically a member of the certified Class, unless that member elects to exclude themselves or "opt out" of the Class. No resolution is final without court approval, including any award of attorney's fees.

A claim may be maintained as a class action under California law when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court. There must be an "ascertainable class," which means class members can be clearly defined and identified. This allows a court to provide notice of the class action to all potentially affected. There must also be a "community of interest" in the subject matter of the action, including predominant common questions of law or fact, class representatives with claims or defenses typical of the class, and class representatives and competent class counsel who can adequately represent the class.

For example, failure to pay overtime or other wage and hour violations rarely impact only a single worker. One employee can bring an action against an employer as the representative of every similarly-situated employee suffering the same treatment, including different job classifications.

In order to fairly compensate individuals to bring on these types of class actions, the Courts have also allowed incentive pay to the representative plaintiffs to compensate them for their time and effort in bringing the class action for the benefit of the class member where the class action is won. These awards can range from nominal amounts to tens of thousands of dollars. Lawyers who represent a class for money damages or restitution are generally paid out of the recovery. Attorney's fees and costs of litigation are not paid up front by claimants and only come out of any recovery.

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What Should I Look for in an Employment Lawyer in California?

The employment lawyer or labor lawyer you select should be experienced with the different types of employee rights and working condition requirements under the California Labor Code and Industrial Welfare Commission Wage Orders. Choose an employment lawyer or labor lawyer who has represented union and non-union employees in actions for overtime compensation, minimum wage and reporting pay compensation, untimely payment of wages, split shift premium compensation, rest and meal period violations, employment expense reimbursement, uniform reimbursement, improper tip-pooling, and record-keeping violations.

A good employment lawyer can determine whether you are entitled to additional wages and benefits beyond what you are seeking. Experienced class action employment lawyers can advise whether your case is suitable as a class action. These cases can initiate positive changes in working conditions for an entire company and obtain back pay and other compensation for all the employees.

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What Are The Ten Biggest Mistakes Made By California Employers?

1. Overtime Misclassification/Reclassification Without Paying Back Pay

Simply paying workers a salary does not relieve employers from paying overtime unless they qualify for a specific exemption. Computer technology employees, loan officers, and many store managers work long hours and weekends, are paid a salary without premium overtime pay, but do not qualify under any overtime exemption by devoting more than 50% of their time to exempt duties. Employees are entitled to four years of back pay. Companies are reclassifying salaried employees from overtime exempt to overtime non-exempt but failing to pay four years of overtime owed.

2. Failure to Reimburse All Business Expenses

Employees are entitled to reimbursement for automobile, cell phone, marketing, and virtually all expenses incurred as a part of their job.

3. Taking Deductions From Wages

The California Labor Code prohibits deductions from wages to pay portions of assistant’s salaries or bonuses, processing fees, uncollected fees from third parties, uniforms, cash shortages, or differential shortages between quoted sales prices and actual sales prices.

4. Miscalculating Overtime Rates

Employers are required to include earnings for non-discretionary bonuses in calculating workers’ hourly rate of pay for premium overtime pay of 1.5 times the hourly rate for hours worked in excess of eight hours per day and 2.0 times the hourly rate for hours worked over twelve hours per day.

Employees paid by the number of jobs they complete or people they service during the day (“piece rate” employees) must also be paid overtime of one half their regular rate of pay, calculated as total weekly income, including expense reimbursements paid as wages, divided by total hours worked.

Non-exempt employees paid hourly or salary wages plus commission must be paid a separate “commission overtime” rate in addition to the hourly overtime rate. When a commission is paid on a weekly basis, it is added to the employee’s other earnings for that workweek and the total is divided by the total number of hours worked in the workweek to obtain the employee’s regular hourly rate and applicable overtime rate. When payment of a commission is delayed until after the regular payday for the period during which the commission was earned, the employer must calculate additional overtime compensation by dividing total commissions by the total hours during the commission period to calculate the regular hourly rate and paying one half the regular hourly rate for all overtime hours.

California employers are not allowed to use any “comp time,” failing to pay overtime premium pay by taking overtime from one day or week and giving time off on a subsequent day or week.

5. Failing to Provide Uninterrupted Rest and Meal Breaks

Employees who are not provided a paid, uninterrupted rest period for every four hours or major portion thereof worked and an unpaid, uninterrupted 30-minute meal period free to leave the premises for shifts of over five hours is entitled to an additional hour of pay.

6. Paying Different Hourly Rates for Identical Work

Employers cannot pay the same employee different amounts for the same work as a subterfuge for avoiding overtime pay, such as one rate for regular hours a lesser rate for overtime hours.

7. Misclassifying Employees as Independent Contractors

Employers improperly classify employees as independent contractors to avoid paying payroll taxes, minimum wage and overtime, provide meal periods and rest breaks, or reimburse workers for business expenses incurred in performing their jobs. Among other factors, if an employer has control or the right to control the worker both as to the work done and the manner and means in which it is performed, the worker may be misclassified as an independent contractor. For a complete discussion of all the factors, visit the Division of Labor Standards Enforcement independent contractor website page.

8. Off the Clock Work and Failure to Pay for Unrecorded Hours

Forbidding hourly employees from clocking in until after they have completed tasks, such as donning protective clothing, waiting to pass through security clearances, and walking distances on work premises, or requiring hourly employees to perform tasks after clocking out (such as cleaning, setting up, bookkeeping, or money counting) violates California labor laws.

Employers often forbid overtime hours without permission and instruct employees not to record hours in excess of eight per day or forty per week. However, the employer is required to pay for all hours worked regardless of the number recorded, and it is the employer’s burden under the law to maintain accurate time keeping records.

9. Failing to Pay Hourly Wages for Travel Time

California law requires that employees be paid for all hours worked, including travel time other than commute time from home to the place of employment. Compensable time includes time in which an employee is required to travel in an employer’s vehicle.

10. Vacation and PTO Use it or Lose it Policies

In California, vacation time and paid time off (PTO) are considered vested wages that cannot be forfeited. At the end of every year, any unused vacation time or PTO must roll over to the following year or be paid out to the employee. Policies that require employees to use the vacation or PTO time during the year or lose it are illegal under California law. Vacation time accrues on the basis of time worked, and it is also impermissible for an employer to have a policy that vacation time is not considered earned or vested until the end of the year. Employees must be paid any earned vacation time at the time they leave their employment.

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