Q: I WORK for a temp agency with headquarters outside California. As a condition of work, I agree to report to a location anywhere in Southern California assigned by the agency and I have to wait to be given work. Often, I report to a location and I am assigned work only after 3 or 4 hours of waiting. The wait time is not paid at all. My actual work may be anywhere from 6 to 9 hours. Should I be paid for the time I spent waiting for work to be assigned to me?
A: It can be argued that you are entitled to be paid additional wages, including overtime wages, for your “wait time.” Under California law, time spent by an employee performing activities that are controlled by and for the benefit of the employer is considered “work time” and must be paid by the employer. These activities may include “nonproductive” time such as time spent by an employee waiting for the employer to provide instructions to the employee.
Consider the following case:
Jeffrey Allen is one of 600,000 employees for Labor Ready Southwest, Inc., a company that provides temporary staffing to numerous companies in the United States. Allen sued his employer for various labor violations, including non-payment of minimum wage, overtime, and missed meal and rest periods premiums.
The employee’s complaint stated that the employer had a practice of making the employees report to its branch offices and employees regularly wait several hours to be assigned to work at a company. If the employees received assignments, they were required to return to work daily to perform work including returning time sheets to the temp company. The employees were not compensated for the time spent at the employer’s branches waiting to be assigned work or time returning to the branches.
After about 7 years of litigation, the parties settled the case, with the employer agreeing to pay employees $4.7 million in damages.
Another noteworthy aspect of the case is that the employees also complained that the pay checks they received did not contain a California address (i.e., out-of- state paychecks). The employer was based in the state of Washington. Employees either had to wait for checks to clear, or pay a fee to get them cashed. If employees chose to receive a cash payment, they are charged fees of $1.30 to $1.70 for each employment date. As a result of these practices employees who quit or were discharged were not paid all wages due.
Under California law, employers must fulfill their wage payment obligations in a form that is negotiable and payable in cash. A check, for example, can be taken to a bank and cashed. A check then is a method of payment that is payable in cash. Employers, however, must not issue a form of payment that would cause the employee to incur fees or penalties when they cash it. Therefore, employers cannot issue a check from a bank that will charge a fee for cashing the check.
Finally, the deposit for wages should be made in a bank, savings and loan association or credit union with a place of business in California, and which allows for at least one transaction per pay period without a fee.
In this on-demand economy, where companies are increasingly outsourcing their labor, it is important for employees to know their rights to prevent them being exploited by employers who are always looking to cut costs.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant recoveries for thousands of employees and consumers. He is named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a member of the Million Dollar-Advocates Forum.