Is this actually a discretionary bonus or is my boss illegally misclassifying wages?

[smraff]

Please review my prior response and answer all of the questions I asked.

Please review my prior response and answer all of the questions I asked.

I did answer your questions. The law distinguishes between discretionary and nondiscretionary based on the criteria I listed. You’re welcome to look up what CA labor law stipulates about discretionary bonuses, but I paraphrased regarding expectations/promise, history of pay, employer’s full discretion to pay it, regularity/consistency of bonus pay, a metrics/formula basis. I also explained the “so what” aspect multiple times. I explained that my true effective hourly rate matters for OT/hours worked in general and how using the $20/hr rate erroneously has consequences for my overtime, total hours worked, sick pay.

And no, she doesn’t have full discretion to pay bonuses to me just bc I’m doing a good job. The law says it can’t be called discretionary if it’s promised and a regular part of my wage. Irregular and variable would distinguish a true discretionary bonus. She wrote it in my contract that the bonus was to add $35 to each hour to make me $55/hr, and discretionary bonuses can’t be directly based on my hours worked/productivity, like it currently is, to be labeled as such. Discretionary by definition has to not be based on metrics or measured output. She has promised since the beginning to pay the bonus, making it a regular part of my wage, not a bonus.

The only thing that really matters in this conversation is whether the discretionary label is legal bc it directly implicates my past pay and pay going forward, which is why I asked about it. If it’s legal, nothing changes. If it’s not, my hourly rate needs to be respected and she owes me backpay. It also maters moving forward how I’m paid bc I still work there.

I was hoping someone with a law background knew about the language governing laws on bonuses and could weigh in on my evaluation of the situation.

 

[smraff]

How many hours per week are you working?

Depends greatly. Generally 30-40, but often there are weeks with a day or two of 8-9+ hours

 

[quincy]

smraff, the link I provided earlier speaks to the laws governing bonuses. Did you read the information in the article?

You will need to have your contract reviewed by an attorney in your area. No one on this forum - whether attorney member or educated layperson - can do this review as that is considered the practice of law and exceeds the scope of what this forum offers.

Based strictly on what you have said, you appear to have a good argument for overtime pay above the pay you regularly receive, regardless of how your employer labels this pay. But the fact that I think you may have a good argument means little, and having a good argument also does not mean it’s a winning argument.

Do yourself a favor and sit down with an employment law attorney in your area.

 

[hungryfox092]

thanks for sharing..!

 

[zddoodah]

I did answer your questions.

No you didn't (at least not all of them). Here are questions I asked that you didn't answer:

1. What law do you think distinguishes between "discretionary bonuses" and something else? "California law" is not an answer to this question.

2. I noted that "you [hadn't] given us any facts that are relevant to this question." While this isn't a question, I think a reasonable person would infer that it was a request that you provide us with a recitation of whatever facts might be relevant.

3. Is it not possible that your employer exercised its discretion to pay you the bonus in all cases because you're really good at your job?

4. In your follow up post (#5 in the thread), you wrote, "i've read about it," and I asked, "Read what?"

5. In that same post, you wrote, "ca law is pretty strict about these types of things and there are certain criteria that disqualify it." I asked, "Which California laws specifically? What types of things? What criteria? Disqualify what? Verify what?" Surety, you didn't make such an unequivocal statement about what California law says without actually having read the law. Right?

6. Continuing that theme, you wrote, "the law seems to state that if bonuses are tied directly to number of hours worked, it can no longer be called discretionary," and I asked, "Which law? What does 'seems to state' mean?"

When someone claims to have already done reading on a subject, I want to know what the person has read so that, if applicable, I can understand how the person has become misinformed so that I can better explain the situation.

I also should have pointed out previously that no one here has read your contract, and you haven't quoted the document.

At the end of the day, if you believe your employer is failing to pay required overtime pay, your recourse is to make a claim with the DLSE.

 

[not2cleverRed]

I'm still baffled as to what your goal is.

Are you looking for a support group?

Or are you looking for pointers on how address your problem?

 

[cbg]

I'm still baffled as to what your goal is.

Are you looking for a support group?

Or are you looking for pointers on how address your problem?

C'mon Red. He wants someone to whom he doesn't have to write a check to say, "Yes, that is unquestionably a violation of your contract and you can sue your employer".

 

[quincy]

If smraff doesn’t want to write a check to an attorney to see if he has a cause worth fighting, he can file a claim for free with the DLSE, as I noted in Post #12. Doodah provided a link to the DLSE in Post #20.

The DLSE will investigate the situation to determine if the employer is trying to skirt the law on overtime pay by labeling all wages regularly paid over the contractual amount “discretionary.”