meal periods

[morton36]

Even if the new laws are in effect, I think I could have a case if I could be allowed access to the computer records of my orders.But I have no idea if they are obligated to give them to me. What I was told before I left the company was that any information on their computers is their property. Can I subpeona the records?
With the exception of JETX and his delusional fantasies of my lies, laziness, and deception, I thank all for this information.

 

[JETX]

And with your finally providing the details you should have in your first post.... my opinion still stands.
However, it is your right to go ahead and file a complaint with your state DOL.... but don't count start spending your money. I doubt you will get anything.

 

[pattytx]

There is nothing illegal about setting up an automatic lunch deduction in a time and attendance system. However, if you worked during that time, you should have gone to your supervisor and had them remove the deduction. Also in that way, there would have been no question that your employer "knew or should have known" you were working.

 

[morton36]

The climate at my former workplace was one that I feared losing my job if I didn't get everything done, which was impossible to do in an 8 hour shift. I agree with you as to what 'I should have done'. The fact remains that I worked 'off the clock' to what amounts to over 100 hours and I need to be paid. I conclude from your feedback that the proper avenue is a wage claim, and not a pursuit of penalties. I'll take that avenue if I can subpeona my records. Thanks.

 

[pattytx]

All you have to do is file the claim. The Division of Labor Standards Enforcement (CA's Labor Board) will do the investigation. However, if the company records show that you didn't work, what good will they do you?

 

[JETX]

I'll take that avenue if I can subpeona my records.

And that will be just the start of your problems.... you have NO 'right of subpoena'!! You can ask for your records all you want, but until you actually file a lawsuit, you can't do subpoena anything.

The point I have been trying to make all along is....
Yes, you have the right to file a complaint and request pay/damages.
But, you have no way to prove your claim to anyone. Heck, you don't even know for FACT how many days you got phone calls, how long each of those calls took, whether the call was really work related or just a personal call, etc.

One other FACT you seem to continue to ignore is.... were your scheduled meal breaks an hour long.... or just 30 minutes?? If an hour long, then you would have to prove that you spent over 30 minutes of that hour 'working'.... and thereby were 'damaged' in the loss of your required 30 minute break.

Lets take a look at the 'claims' you are making in this thread.
You now claim that the time you are owed amounts "to over 100 hours".
Your earlier post said this time was accumulated "approximately 4 times a month for 2 years." That comes to 96 'incidents' of phone calls during your meal breaks (4 per month times 24 months) .
That means that EACH call would have to be over an hour long!!!

Sorry, but the more you tell us about this 'claim'.... the less likely it is to be true.... or PROVABLE!!

As I said before.... go ahead and file your claim (it will be interesting to see what response the employer makes!!). Just don't start spending your money yet.

 

[morton36]

JETX, You are misreading the information I have given and made made assumptions on it that are incorrect. I originally asked a question about lunch breaks, and if I could add this to a claim of unpaid wages that I already was planning. The 100 hours are an estimate combining said lunches with hours worked 'off the clock' that I was clear on and didn't need help with. You literally have been incorrect in every one of your legal statements in this thread!
["the fact that you CHOSE to 'eat at your desk and answer your phone' (which is likely the scenario you describe) was not compensable"]
-incorrect. I never answered the phone, I was paged.

["Your 'work' was sporatic at best. A very vague 'approximately 4 times per month' would be very hard for you to PROVE."]
-incorrect. In Cali 'burden of proof' lies with the employer.

[There is NOTHING in this thread to even suggest that the writer was required or requested to 'work' during lunch. I find it far more likely that he/she was simply eating at his/her desk.... and answered the phone when it rang. If that is the case, it is NOT compensatory..... or actionable.]
-incorrect. Employer is responsible for any unauthorized labor, this is clearly stated in the California Labor Code.

["Also, I think that any claim would be impossible to prove or to determine what hours were worked..... especially since the writer says "I found it necessary to work during my lunch break approximately 4 times a month for 2 years.""]
-incorrect. In California the DLSE allows for fair estimates of hours worked. Think! If all hours were documented there wouldn't be wage claims!!!

["That is NOT work. And if during that 'free hour', the phone rings and the employee picks up the phone thinking it is his/her 'sweetie' and it ends up being a customer. Is that work??"]
-Yes, it is! Would you volunteer to answer my calls for free?

["but at this time there is simply no way that you can make statements of fact..... without the facts."]
-FINALLY! A TRUE STATEMENT!!!

["1) He would have to PROVE that he worked duing lunch, he can't.
2) He would have to PROVE that his employer KNEW that he was 'working', there isn't.
3) He would have to PROVE that he was 'working' through lunch at his employers request/knowledge, he can't."]
-All 3 contradict California Labor Code.

["you have NO 'right of subpoena'!! You can ask for your records all you want, but until you actually file a lawsuit, you can't do subpoena anything"]
-Correct! That is why I will simply ask for them. I read the Cal. Labor Code section about this today. They cannot legally deny me my records. Thank you JETX. Your ignorance of California Law is my inspiration to reach an amicable settlement with my former employer.

 

[JETX]

JETX, You are misreading the information I have given and made made assumptions on it that are incorrect.

Nope. I did not misread, misinterpret or misunderstand your post. The fact is.... you NEVER mentioned that your 100 hour total was derived from anything other than your issue of working during a meal break.

I originally asked a question about lunch breaks, and if I could add this to a claim of unpaid wages that I already was planning.

You can't even get your story straight!!
You NEVER mentioned anyhing about ADDING this "to a claim of unpaid wages" that you were already planning. In fact, this is the very first time you have said anything about other plans.

The 100 hours are an estimate combining said lunches with hours worked 'off the clock' that I was clear on and didn't need help with.

Where were you 'clear' on this??

You literally have been incorrect in every one of your legal statements in this thread!

Give ONE example where I was incorrect in a LEGAL statement. I did make several assumptions because you either provided insufficient information (you STILL haven't answered the questions I asked!!)... or your post was inaccurate (as in this 'new' claim).

["the fact that you CHOSE to 'eat at your desk and answer your phone' (which is likely the scenario you describe) was not compensable"]
-incorrect. I never answered the phone, I was paged.

From your own post: "my position required a considerable amount phone calls. On the days that I actually took a lunch break, I was expected to receive business calls during my lunch."
and
"Is a meal period legally provided for me if it is interrupted by business calls that I was pressured to take?"
So, which is it??

""Your 'work' was sporatic at best. A very vague 'approximately 4 times per month' would be very hard for you to PROVE."]
-incorrect. In Cali 'burden of proof' lies with the employer.

Do you KNOW that.... or are you just relying on cbg's opinion?? How about providing some statute or rule saying that an employee can make any claim that they want.... and it is up to the employer to prove or disprove it. Simply, does NOT make any sense that would be the case.

[There is NOTHING in this thread to even suggest that the writer was required or requested to 'work' during lunch. I find it far more likely that he/she was simply eating at his/her desk.... and answered the phone when it rang. If that is the case, it is NOT compensatory..... or actionable.]
-incorrect. Employer is responsible for any unauthorized labor, this is clearly stated in the California Labor Code.

Again, show me the 'code' where an employer is obligated to compensate an employee who CHOOSES to take business calls during his meal break. There is NOTHING in this thread that SHOWS you were required, ordered or even expected to answer the page (or take the calls).
If you were required to remain on premises during lunch AND if you were required to take business calls, your employer is in violation as you claim.
However since you seem to refuse to answer REAL questions as to your claims.... lets try again.
1) Were you required to remain on premises during your meal break... or did you just choose to?
2) Were your 'meal breaks' 30 minutes or an hour?
3) Were you TOLD that you were expected to take business calls during your meal breaks??
4) And finally.... how do you plan to PROVE or provide ANYTHING other than your 'confused' statements that you took ANY calls??

["Also, I think that any claim would be impossible to prove or to determine what hours were worked..... especially since the writer says "I found it necessary to work during my lunch break approximately 4 times a month for 2 years.""]
-incorrect. In California the DLSE allows for fair estimates of hours worked. Think! If all hours were documented there wouldn't be wage claims!!!

Of course that is the case, as not all employees 'punch a clock'.... so would have to create a 'fair estimate'. However, for those who do 'punch a clock' or do submit timesheets, I doubt that the CA DOL will accept a 'Gee, I think I spent 15 minutes on the phone, twice during the month of June 2004!'.
Use a little common sense.... do you really think that the DOL is going to say.... "Well, no problem then!! Lets get you some money!!".

["you have NO 'right of subpoena'!! You can ask for your records all you want, but until you actually file a lawsuit, you can't do subpoena anything"]
-Correct! That is why I will simply ask for them. I read the Cal. Labor Code section about this today. They cannot legally deny me my records. Thank you JETX. Your ignorance of California Law is my inspiration to reach an amicable settlement with my former employer.

By all means, go for it. After all, your former employer probably needs a good laugh!!
And of course, I would love for you to return after all your claims are resolved so that you can tell us how it ended up.... but it is clear from your posts in this thread..... that you will claim victory.... no matter what the real outcome.
Have a hap-hap-happy day. And don't go out and spend that 'uncompensated income'.

 

[cbg]

The last time I dealt with the CA DOL, I had iron-clad, verifiable by three different methods, cast in stone proof that I had paid the employee every penny that was due her and paid it when it was due; the CA DOL still took her word for it otherwise no matter how much documentation I provided to the contrary. It wasn't till the employee admitted that she was lying that they backed off.

I'm not quite sure why it is so important to Jetx that this claim be unfounded, but go ahead and file. The worst that can happen is that the claim is denied. There's no penalty for filing and losing.

 

[JETX]

I'm not quite sure why it is so important to Jetx that this claim be unfounded

You know what?? I couldn't care less if this persons claim is unfounded or not.... and everything I have done in this thread is intended to try to get the REAL story from this person.

After years and years of hearing these types of client issues, I find that the majority of them never really end up as they client tries to spin them. It is basic human nature to try to present the story in a light favorable to the presenter... but our/my job is to try to 'read between the lines' and ask the questions that are unanswered.

The fact that I have asked several questions of this writer that are ESSENTIAL in trying to give accurate, valid answers.... and he has refused or failed to answer them is more telling then the words he does say (type).

I also have to temper his statements with the fact that they seem to change when he is questioned on the facts. These, and other reasons, simply make me question whether we are really hearing the full story here.

None the less.... it is clear that the writer isn't going to answer the 'tough questions'.... so I do wish him the best. Go forth and file your claim with the state DOL (as I have already said). They are going to be the final arbiter as to whether the claim stands.

 

[morton36]

I have, and will answer anything you need to know.
-JETX, perhaps I can practice settlements by reaching one with you. I agree with you that the phone issue seems and is petty. I never intended to suggest that was the basis of my entire claim. That was meant only as an example. The 'real story' i felt was too long to post. I'm not trying to defend my case on this website, that is what the DLSE is for. I needed a couple answers, thats it. I have never gone through this before (and i hope never again), so I thought I gave enough information in my initial post to get answers I could use. Obviously I was way off. I just wrote the owner of this company, giving my version of my history with his company. I also asked him for payment of these said hours. It goes into detail of all my accusations. I would be more than happy to change the names and have you read it. I guarantee you will see my case clearly and will volunteer to defend me!
But you are wrong about me having to prove my hours. All I need do is to provide a basis for my claim. This company does NOT want the Labor Dept. in their books. There are many violations going on. They will settle.

 

[JETX]

They will settle.

Of course they will.... wink, wink.
Good luck.... and be sure and come back and let us know how this ends up.... honestly.

By the way, here are the questions you still haven't answered:

1) What work do you do?
2) Did the employer ask or otherwise authorize your 'unscheduled' work?
3) How long were your lunch periods (15 minutes, 30 minutes, one hour, etc.)??
4) How much was the LONGEST time you worked during this lunch period?
5) Were you required to remain on premises during your meal break... or did you just choose to?
6) Were you TOLD that you were expected to take business calls during your meal breaks??

 

[morton36]

I am starting to understand a little of your frustration. I am trying to juggle work (with a commute), with this research for my case, and am finding it difficult to keep up. I also am ashamed to say that I dont know how to post a link on this thread. I've tried a couple of times.

1) What work do you do? I am very paranoid of the H.R. Dept., or anyone from my former job, reading this material. They want to know what proof I have of unpaid wages. I am a retail grocer and have been for 10 years. 7 of them with said company until I was terminated recently. I now work for a larger but similar company.

2) Did the employer ask or otherwise authorize your 'unscheduled' work? Not verbally. But employer would have to be a terrible manager to not know.
*Any time I would not clock out for lunch, automatic by machine.
*Anytime I would clock out but continue to work, employer did not act.
*Anytime I would clock back in from lunch early, secretary would manually adjust my time to make it a legal lunch.
All 3 of these occurrances happened frequently.
*Times when I was actually taking a break, often were interrupted by calls (customers, vendors, brokers, THE OWNER,...), or I customers in the store who I was paged to help.

3) How long were your lunch periods (15 minutes, 30 minutes, one hour, etc.)??30 minutes.

4) How much was the LONGEST time you worked during this lunch period? I often worked straight through. Too many times to count. In this case I would find a few minutes to wolf down some food towards the end of my shift.

5) Were you required to remain on premises during your meal break... or did you just choose to? I chose to. I had to. I didn't mind at the time. I had a too much work to do. And I already described the climate of my workplace.

6) Were you TOLD that you were expected to take business calls during your meal breaks?? No. Employer was in a position to know, and did nothing. (Alright, already!)I was told that the phone issue is not relavent to this claim. (please refrain from petty "I told you so's). Unless I can add up the minutes.
But I can file a seperate claim for collecting penalties, where each instance of these calls may be a violation considered compensible. But I see your point.

My assistant at the time has promised to be my witness in any claim as to the working conditins and her knowlege of me working through lunches. She is held in low regard, however. I dont think it will go that far. Thanks for listening.
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