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Employee is Paid a Daily Rate Regardless of Hours Worked, No Overtime Pay

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  • 08-05-2015, 09:18 PM
    megansamson
    Employee is Paid a Daily Rate Regardless of Hours Worked, No Overtime Pay
    My question involves labor and employment law for the state of: California

    My fiance works for a home improvement/construction company that pays their employees by the day and offers no hourly overtime.

    For example: he is paid $135 per day, whether he works from 7:00am (his starting time) to 12:00pm or 9:00pm. When he works a few hours, which is EXTREMELY rare, it's not so bad. However, more often than not he does not return to his shop until after 7:00pm, which constitutes for a 11 to 12 hour work day depending on whether or not he took a lunch. I believe the company recently started paying time and a half if you work 6 consecutive days in a row, but I am not 100% sure.

    Is this legal?? Aren't there laws regarding employees working over 40 hours? Thanks in advance for any feedback.
  • 08-06-2015, 03:58 AM
    llworking
    Re: Employee is Paid a Daily Rate Regardless of Hours Worked, No Overtime Pay
    Quote:

    Quoting megansamson
    View Post
    My question involves labor and employment law for the state of: California

    My fiance works for a home improvement/construction company that pays their employees by the day and offers no hourly overtime.

    For example: he is paid $135 per day, whether he works from 7:00am (his starting time) to 12:00pm or 9:00pm. When he works a few hours, which is EXTREMELY rare, it's not so bad. However, more often than not he does not return to his shop until after 7:00pm, which constitutes for a 11 to 12 hour work day depending on whether or not he took a lunch. I believe the company recently started paying time and a half if you work 6 consecutive days in a row, but I am not 100% sure.

    Is this legal?? Aren't there laws regarding employees working over 40 hours? Thanks in advance for any feedback.

    Is he an actual employee (they withhold taxes from his pay) or is he treated as a contractor?
  • 08-06-2015, 04:24 AM
    flyingron
    Re: Employee is Paid a Daily Rate Regardless of Hours Worked, No Overtime Pay
    Quote:

    Quoting llworking
    View Post
    Is he an actual employee (they withhold taxes from his pay) or is he treated as a contractor?

    Treated like a contractor doesn't make it legal unless he really is performing as a contractor. Grabbing laborers and lugging them off to a job site doesn't sound like true independent contracting. They are employees and should be subject to all the non-exempt wage laws.
  • 08-06-2015, 05:29 AM
    llworking
    Re: Employee is Paid a Daily Rate Regardless of Hours Worked, No Overtime Pay
    Quote:

    Quoting flyingron
    View Post
    Treated like a contractor doesn't make it legal unless he really is performing as a contractor. Grabbing laborers and lugging them off to a job site doesn't sound like true independent contracting. They are employees and should be subject to all the non-exempt wage laws.

    I do not disagree, but what actions can and should be taken, in what order, depends on the answer to the question.
  • 08-07-2015, 09:55 PM
    megansamson
    Re: Employee is Paid a Daily Rate Regardless of Hours Worked, No Overtime Pay
    Quote:

    Quoting llworking
    View Post
    Is he an actual employee (they withhold taxes from his pay) or is he treated as a contractor?

    He is an actual employee, has taxes taken out of his check, filled out a W-2, is not 1099 or an independent contractor.
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