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Question
maint. $15 an hour. landscaping  $800 a month
two seperate checks same company .
part 1: in the beginning for 20 months no time sheets
was suppose to be 4 hrs maint , 4 hrs landscapi ng
my employer began working me more then 4 hrs maiint .
but only paying me for 4. he said . the landscaping pay covers the
extra maint hrs. it alll works out to $12.50 an hour .
i said  only if i work 4 and 4
im getting my caculations from my w2 for 2011.i made exactly $24,000
thats because my employer only paid me $15 x 4 hrs a day x 10 days
every pay cycle . and the $800 a month is $10 an hr. x 4 hrs aday x 10
days each cycle . not only was i being burned for maint hrs but also for the
11and 12th days that r in some pay periods . i was twice a month.
after 20 months i got sick and tired of this crap and asked for my money .
they got very mad . called me a liar , told me to prove it. but they also
change the program . they started using time sheets they started paying me
for 8hrs of maint per day and paid me the 800 to do landscaping after my 8hrs of
maint.
no they did not pay me overtime.  for 2 to 3 months this went on. then they changed
it tto 6 hrs maint and 2 hrs landscaping for my 800 amonth. but my boss still worked
me more maint then he was paying me for. at the conference the lawyer kept
saying , that i was over paid because sh combined the 2pays . she sais since i wasnt
doin landscaping , that pay covered the unpai maint. hrs. i argued and argued.
is this true ?
if it i legal , that may be true when i was being paid to work 6 hrs maint
but not when i was only being paid for 4 hrs maint . then ther i a difference of  
$5 an hr , right

Answer
David:

It appears based on what you've presented here that your employer may have serious issues under California wage and hour law.  It's somewhat complicated by the dual wage structure, which is not in itself unlawful, but the bottom line is the same: you are entitled to overtime pay at 1.5 times the regular rate of pay for all hours worked in excess of eight per day and 40 per work week.  In accordance with a 1992 opinion letter from the Division of Labor Standards Enforcement, when a person is receiving different wage rates for different types of work, the regular rate on which overtime pay is calculated is the weighted average of all different rates paid on a given work day. (As far as I can determine without extensive research, that 1992 opinion letter is still operative under state law.) You must be paid for all time worked.

A great deal of helpful information is available at the web site of the California Division of Labor Standards Enforcement (DLSE), here:   http://www.dir.ca.gov/dlse/

The 1992 opinion letter I referred to is also available on this site.  Go to this page:

http://www.dir.ca.gov/dlse/OpinionLetters-bySubject.htm.  Then scroll down (it's pretty far down the chart) to opinion letter number 1992.04.27-1.

You are entitled to have your rates of pay clearly indicated, along with your time worked and other information, on your pay stub every pay period. The state is very meticulous about enforcing the pay stub requirements.  In addition you have the right under state law to review and make copies of all of your payroll records, within 21 days after making a formal request. (See Q/A 7 at this page of the DLSE web site: http://www.dir.ca.gov/dlse/FAQ_Paydays.htm)

My suggestion is to gather all your pay stubs, and get copies of your records from the employer if you are missing any stubs or they were not provided, and contact the DLSE through the website or by calling the nearest office to where you live and work.  Let them help you sort through all the numbers and determine where the employer has failed to comply with the law.  If you wish, you can retain an attorney experienced in handling California wage/hour claims.  This is usually a very good idea, as an attorney can help you work with the DLSE and also be your advocate with the employer.  Please note, the employer is prohibited by state and federal law from taking any retaliatory action against you for filing a DLSE wage complaint or a similar claim with the U.S. Department of Labor.  If you don't know a lawyer with this type of experience, you can do a couple of things.  First, put the name of your city or county and the words "bar association attorney referral" into your preferred search engine and you'll find the local bar association web site, where you can get linked up with an attorney who has the right experience.  Or, just put in the words "California wage and hour lawyers" and you'll get many links to web sites maintained by law firms and solo practitioners who specialize in handling wage/hour claims for California employees.  

You should definitely pursue this, as I believe from what you've posted here that you very likely are owed some money by your employer.  I hope you find this helpful.

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Frank C. Magill

Expertise

I can answer questions about any U.S. labor or employment law question. I cannot answer questions about non-US law. I am not a specialist in employee benefit law (ERISA and HIPAA) or Workers' Compensation law, but will do my best to point questioners toward good resources availabe online. Expertise includes, without limitation, EEO/Affirmative Action/Employment discrimination (Title VII, Age Discrimination in Employment Act, Americans With Disabilities Act, GINA, Fair Credit Reporting Act as applied to employment); Fair Labor Standards Act; Texas labor code; Family Medical Leave Act; employee compensation; discipline and dismissal; force reductions, severance pay programs and administration; collective bargaining, union representation, grievances and arbitration, National Labor Relations Act and National Labor Relations Board; employee handbooks; staffing; dispute resolution outside of traditional labor agreements; employee communications; employment policies and compliance programs; codes of ethics; employment or labor litigation.

Experience

30+ years experience as corporate counsel for a Fortune 100 telecom company, specializing in labor and employment law issues. In addition to providing day-to-day advice to my company's internal HR leadership and staff, I've represented the company in numerous labor arbitration cases and at the bargaining table.

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Texas, Illinois and Missouri state bars

Education/Credentials
J.D. 1979, Harvard Law School. B.A., Summa Cum Laude, 1976, Illinois Wesleyan University.

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