Help Finally on the Way for California Overtime Victims

Los Angeles, CATo all who have been denied California overtime, help is finally on the way. In April identical bills were introduced to both houses of Congress in an effort to amend the provisions of the federal Fair Labor Standards Act (FLSA). Representative Lynn Woolsey undertook the presentation of HR 5107—the Employee Misclassification Prevention Act (EMPA)—in the House of Representatives.

Employers in various states have been known to purposefully misclassify workers in an effort to get around overtime laws and other labor provisions. This is especially true in California, where computer programmers and other IT professionals are often misclassified in an effort to avoid paying costly overtime. Misclassification, however, can run across various employment sectors.

The proposed bills will amend FLSA and require that employers be penalized for misclassifying as independent contractors those who should be rightly classified as employees.

Among the other provisions:

• Employers will be responsible for keeping records on whether each worker has been classified as an employee or a non-employee (independent contractor). Previously employers were only required to keep records pertaining to employees, but not independent contractors;


• Employers must give notice to each worker of his or her classification and provide the worker with access to information about the rights only granted to employees and directing the worker to the Department of Labor for more information; and


• If the employer fails to properly keep records on the worker's classification or fails to give the worker proper notice of his or her employment classification, the worker is presumed to be an employee and is thus entitled to all of the protections and benefits granted to employees. This presumption can only be overcome by clear and convincing evidence that the worker is a non-employee.

Offending employers could face fines of up to $1,100 for each worker subjected to such a violation. The penalty jumps to $5,000 for each repeat violation.

The bills were summarized in the Mondaq Business Briefing on 4/22/10.

In a related move, the State Senate of New York passed a bill requiring paid holidays, sick days and vacation days for domestic workers, together with overtime wages as required. Domestic workers include nannies and caregivers who don't work in a commercial or business setting, but rather in a home environment.

According to a 6/3/10 article in the New York Times, advocates in California are opting to see similar legislation passed to protect workers against unfair employment practices.

"You have some employers that are very good and some that are not, and there is nothing mediating that relationship," said Ai-jen Poo, director of the National Domestic Workers Alliance. "So early on, workers said, 'We need basic protections and guidelines so that we won't be at the whim and mercy of our employers.'"

It is hoped that the proposed amendments to the federal FLSA, as well as the potential for state legislation in California, will help guarantee fairer wages for workers who toil overtime in California.