Can a former employee sue for unpaid overtime in California? Unfortunately yes, and these lawsuits are significantly increasing in number. You thought you parted ways on good terms, and six months later you are served with a lawsuit claiming unpaid overtime violations or a PAGA class action lawsuit seeking significant damages.
3 Key Takeaways to Answer the Question Can A Former Employee Sue for Unpaid Overtime in California?
- California is the most difficult state in which to be an employer. There are many ways current and former employees can sue an employer, and the risks must be acknowledged, planned for, and carefully managed to avoid an expensive dispute or lawsuit.
- Wage and hour disputes including unpaid overtime are the most common and expensive risks for any California employer.
- It is possible to reduce or eliminate your risks as a California employer. This is why it is important to work with an experienced, proven California employment defense attorney who can help you to ensure every aspect of the employment process is thoroughly planned, documented, and consistently acted upon within your organization. It also provides you with the ability to make a quick, informed phone call the moment you, as an employer, suspect there may be a problem with a current or former worker.
We Have Documentation!
“But we have signed time cards. Isn’t that enough?”
Unfortunately not. California courts have sided with employees in too many cases who attempt to assert there was an atmosphere of implied expectations relating to work after hours and on weekends. They point to email records, and in many cases have very little documentation whatsoever.
How Can a Former Employee Sue for Unpaid Overtime in California
How can a former employee sue for unpaid overtime in California? Recently there has been a substantial increase in PAGA actions and wage and hour lawsuits by plaintiff’s attorneys. They are actively advertising for these workers as well as former employees who file for unemployment when they were classified as an independent contractor.
Common issues which form the basis of a wage and hour lawsuit or PAGA action include, but are not limited to:
Unpaid overtime or disputed overtime claims
Leave Disputes (sick, vacation, personal, holidays, jury duty, family)
Off-the-clock work violations
Minimum wage violations
Misclassification of employees
Misclassification of exempt workers
What is an employer supposed to do to ensure they are not faced with a lawsuit for unpaid overtime in California?
Pro-Tip: “So as an employer, what’s the best precaution one can take? the answer: Pay attention and have a good lawyer.
Have a good lawyer for employers who stays up to speed and take those little technical matters seriously, because it doesn’t cost much to be in compliance. It really doesn’t, but it costs so much to get caught. Usually you don’t get caught for a few months and before you know it, you could literally lose hundreds of thousands of dollars for an accounting error or the way you put your paychecks out or your refusal or failure to put up a little sign in your break room. All those little things. There’s some lawyer out there, Mr. Bounty Hunter, looking for you to try to collect five, 10, $15,000 in attorneys fees for tiny mistakes made by San Diego and California employers.
When we’re talking about protecting our employer clients, the old saying, ‘a good defense starts with a good offense,’ definitely applies. What are the elements of a good offense in your mind for an employer?
Employment contracts, human resource manuals, employee handbooks, rules and regulations, training and staying up to speed on the ever-changing laws in California. Having a lawyer on speed dial you can call with a question or concern and get the right answer, often without a bill!
Let’s talk about class actions. That’s how you take a mistake on the way somebody drafted someone’s paycheck in the tune of, let’s say $15 a week. That puts you in a class action that costs you three, $400,000 because of an accounting error that led to a class action. Now, had you had certain types of agreements in place, even some kinds of arbitration agreements (that’s where we’re at now on these laws) you could have cut this off. Also, had you had a Watkins Firm lawyer you could talk to about your procedures or maybe an outside accounting service to review it or a CPA or our HR person, someone you can call, you could prevent a huge potential liability. If there’s any questions or your staff can call, then you won’t have this problem. And if you do, then you shut it down right away.
Fast action in any of these matters is the key. Pick up the phone and call us the second that you think something’s going on. Why does that matter?
Judges don’t really like these cases, and there’s a lot of technical reasons to throw them out because they’re turning into sort of a shady PI lawyer, the person that hangs out in the hospital room. These kind of employment lawyers are starting to be like that. And so if they don’t follow all the rules and you get to court in the first couple of months and you file a motion saying you didn’t give the proper notice, you didn’t state the proper cause of action, judge will throw it out.
How about if we can help you to mitigate or remediate the problem altogether? If you know ahead of time and have good experienced lawyer for employers that’s not just ready to milk you, you can put a quick, inexpensive stop to the whole thing. Because that’s what other lawyers often do, they won’t propose a solution. They’ll just propose fight, fight. But sometimes we have our employer clients come in, and we say, ‘no, no, no, don’t pay us all this money. Pay the extra $3,000 in wages. Send out amended pay stubs before you even have to answer the complaint.’ And guess what? All of the causes of action that have attorney’s fees in them are gone. Nobody wants to see you anymore because of that. So yeah, quick action gives your lawyer the right to do things that just destroy a case in the beginning.” – Dan Watkins, Founding Partner
Is There a Defense Against These Risks?
The past few years have brought a significant increase in these lawsuits against local employers. The Watkins Firm has more than four decades of employer defense experience and a proven track record of success in mediation, arbitration, and trial – even nationally covered trials against large companies. We are working closely with our clients to ensure compliance with changing labor and wage and hour laws. The best actions you can take immediately are to issue a clear policy, backed by employee handbooks, policies and procedures manuals and the consistent application of management within your company forbidding overtime unless expressly approved in advance in writing by a supervisor. Many companies have begun to deny access to non-exempt employees after hours in an attempt to defend against unpaid overtime allegations.
The actual time card may require a signed statement at the bottom by the employee affirming that the hours represent a complete accounting free of intimidation under penalty of perjury. It may be necessary to modify employment contracts, policies and procedures and other related documentation, and to regularly reinforce the policy internally.
We are often asked the question ” How can a former employee sue for unpaid overtime in San Diego?” If you are concerned about unpaid overtime and all of the wage and hour issues facing San Diego employers we invite you to review our podcast Episode 39 – What Keeps Employers Up at Night as well as the strong recommendations of our clients and contact the Watkins Firm or call 858-535-1511 for a complimentary consultation today. Learn how you can team with attorneys who have decades of experience and a proven track record serving businesses and employers throughout San Diego and Southern California.
Meet Dan Watkins:
Daniel W. Watkins is a true people person who sincerely listens. He cares deeply about what others are going through. Dan enjoys digging into the facts and finding creative solutions to problems. He contributes his insights candidly and constructively.
Dan’s interest in people make him deeply invested in every relationship and his exuberant personality makes him a true litigator. Dan fights for his clients with a fierce and calculated commitment.
Dan has practiced in the areas of business, medical practices and healthcare business, high tech/science, real estate and employment defense law since 1987. He is a trusted litigation strategist and true trial attorney with over 50 jury and bench trials to his credit. Dan has successfully represented both large companies and individuals and achieved substantial victories in well-publicized trials throughout California and the U.S.
He is experienced in business and corporate formation and administration, as well as all forms of alternative dispute resolution, including binding arbitration and mediation.
THE ROAD TO BECOMING A BUSINESS LAWYER AND LITIGATOR
Dan has almost 40 years of experience working with, for and against some of the largest insurance companies in the country. He has successfully tried and litigated cases in the areas of Healthcare Compliance, Commercial Litigation, Unfair Business Practices, Fraud, Breach of Contract, Battery, Premises Liability, Product Defect, Medical Malpractice, Discrimination, Sexual Harassment, Construction Defect, as well as Unfair Competition, Defamation, and Trade Secrets.
In December 2003, Dan commenced litigation against Health South Surgery Centers-West, Inc and its’ subsidiaries, exposing the company’s extensive mismanagement and misconduct of its’ surgery centers. Dan has also been asked by some of California’s largest municipalities and corporations to conduct legally required investigations into matters involving alleged employment discrimination and harassment.
