Q: My employer pays me at one rate of pay for my regular work, but then pays me minimum wage for travel and attending seminars after-hours. How is my overtime supposed to be calculated?

--Bad at Math (CA)

A: Calculating overtime for an hourly employee who is paid at two separate hourly rates is a fairly complicated analysis and does not come up very often, but hopefully the explanation below makes some sense to you. If you need more help understanding the calculation, please feel free to contact me.

Introduction to the "Regular Rate" (versus the "Base Rate")

An employee's "regular rate" of pay is a legal term for the number used to calculate their "overtime rate" of pay, which is either 1.5 or 2 times the "regular rate," depending on how many hours are worked.

What I call the "base rate" of compensation is the typical rate at which you are paid in a regular day, week or hour of work, whether at an hourly rate, salary, commissions, etc.

Some people get confused by the term "regular rate" and mistake it as a synonym for what I call the "base rate". However, the "regular rate" is only used to calculate the "overtime rate". It really has no other purpose and often bears little resemblance to an employee's actual "regular wages".

In fact, the "regular rate" can often differ greatly from the "base rate," as explained below.

Calculation of "Regular Rate" for Hourly Employees

For hourly employees, the "regular rate" is determined by taking all of the money an employee is paid in any given week and dividing it by the total number of hours worked that week.

The Usual Situation

Hourly employees are usually paid just a straight hourly rate for their "base rate". So, for most hourly employees their "regular rate" is the same as their "base rate".

• Employee is Paid $15 per hour ("base rate")
• ($15/hr X 45 hours=$675)/45=$15 ("regular rate")

For purposes of this example, we will assume that he employee worked 40 regular hours and 5 overtime hours. To calculate overtime pay, the "regular rate" is multiplied by 1.5 to determine the "overtime rate", which in this example would be $22.50.

The most common way to calculate overtime in this situation is to multiply the "base rate" by 40 hours to get the employee's "regular pay" ($600), multiply the "overtime rate" by 5 to get their "overtime pay" ($112.50), and add the two figures together ($712.50) to calculate the wages owed.

However, this is not technically correct, because what the law says is that the employee is entitled to additional "premium pay" for overtime hours worked. So really the way this should be calculated is to multiply the number of hours worked by the "base rate" ($675) and then multiply the 5 overtime hours by the difference between the "overtime rate" and the "regular rate" ($7.50) to determine the additional "premium pay" owed and add the two figures together ($712.50) to calculate the wages owed.

The reason you must subtract the "base rate" from the "overtime rate" is because the employee has already been compensated partially for the overtime hours worked at the "base rate".

While both methods seem to work in this example, the reason the longer version is correct becomes apparent from the next example.

The Complicated Situation

When an employee is paid at two different hourly rates for different tasks, the employer must calculate the "regular rate" using a "weighted average" of the different hourly rates.

Using the same example above, assume that the employee is paid $10 per hour for time spent doing janitorial duties at a retail sales job and that the first 40 hours of the week were spent doing sales work at $15 per hour and the last 5 were spent doing janitorial work.

First, calculate the "regular rate," which is done the same as above--by adding all of the money earned by that employee for the week and dividing it by the number of hours worked:

• [($10/hr X 5 hours=$50)+($15/hr X 40 hours=$600)]/45=$14.44

Second, calculate the "overtime rate" by multiplying the "regular rate" by 1.5 ($21.67). Finally, calculate the "overtime pay" by taking the difference between the "overtime rate" ($21.67) and the "base rate" for the overtime hours ($10.00) and multiply that number ($11.67) by the number of overtime hours worked (5) to determine the additional "premium pay" owed ($58.35).

The total pay for this week should be $708.35.

Again, I know this analysis is complicated, but if you have any questions about whether you are being paid overtime correctly, you should contact an employment law attorney.

Q: I quit my last job because my boss would not stop asking me out on dates. Now I am having a really tough time finding a new position. Every time I go through an interview they seem to love me, but then it falls through once they start checking my references. I think my former boss is bad-mouthing me when these employers call, even though there is nothing negative in my work history. What can I do about this?

--Can't Find a Job (CA)

A: Most employers these days are aware of the potential liability they face for saying too much about former employees. Almost all larger companies will simply say how long the former employee worked for them, their position and rate of pay. In response to any detailed questions, they simply say it is their "policy" not to reveal anything more.

One big problem is when potential employers call supervisors or co-workers for references instead of the human resources department. Most companies have strict prohibitions on who is allowed to give out references, but this is not always the case.

The Law in California

Many Californians believe that it is illegal for employers to say anything negative about them after they leave. However, this is just not the case. It is completely legal for an employer to say anything they want about a former employee as long as it is true.

This might seem like an easy test, but when you consider some of the things that employers say, such as "she wasn't a very hard worker" or "she is lazy," whether or not something is "true" becomes hard to judge.

This is why many companies just prohibit any comments about former employees' performance altogether. California employees who sue because former employers misrepresented something to potential employers can recover triple damages.

Possible Solutions

The problem you have is you do not know if your employer is truly saying negative things about you, what they are saying, or who is saying it. These are all facts you need to know before you decide what to do.

One easy way to find out this information is to have a friend or relative call your old employer and pretend to be a potential new employer. Your friend can ask whether they recommend you, whether you are eligible for rehire, if there is anything they should know about you, etc.

Another method is to use a reference-checking service. These services employ court reporters who call former employers posing as a potential new employer and type out every word that is said. After the call is concluded, they sign an affidavit testifying to the transcript's authenticity and send you a full report.

If you strongly suspect that your former employer is bad-mouthing you, this might be the way to go because the affidavit can be used to sue your former boss or the company for defamation or misrepresentation.

The best reference check service I have used is Documented Reference Check (DRC), which you can visit at www.BadReferences.com. There is a fee for their services, but it is always good to know whether a former employer is bad-mouthing you behind your back.

Q: I took a one-month FMLA medical leave for surgery, but my employer laid me off two weeks into the leave. I have always heard that an employer cannot terminate an employee who is on a medical leave. Is this true?

--Unemployed (CA)

A: It is a common misconception among employees that employers cannot terminate them if they are on a medical leave. While in practice most employer are reluctant to terminate an employee who is out on a medical leave, the law does not explicitly prohibit terminating such an employee.

The Family Medical Leave Act ("FMLA") and its California counterpart, the California Family Rights Act ("CFRA"), protect employees from being terminated because they take a medical leave. It does not totally prohibit termination of an employee while they are on a medical leave. The difference is subtle, but it is there.

For example, assume a salesperson is out on FMLA leave and his company lays off their entire 100-person sales force. The employer is not required to keep the salesperson on medical leave on their payroll and terminating the salesperson would not be an outright violation of the FMLA.

However, if the salesperson is the only one out of the 100 salespeople to be laid off and there is no other clear reason for the termination, it begins to look more like the employee is being laid off because they are on an FMLA leave.

So, in response to your question, what really matters is why you were terminated while out on a medical leave, not just that you happened to be out on a medical leave when you were terminated.

Q: I moved to California from Wisconsin six months ago to take a job with a company here. I quit a good job back home, my wife sacrificed a job she loved, and our kids had to leave all of their friends behind, and we moved our family to California. I was stunned last week when I was suddenly laid off by my new company.

I have heard from some other employees that I was really only hired to do one important project in my area of expertise (which we had just finished two weeks ago) and that they believe it was the company's intention to fire me all along after it was completed. Can I sue them?

--Stranded in California

A: I am truly sorry about what has happened to you and your family, but luckily you moved to a state with specific laws against this sort of thing.

Labor Code § 970

California Labor Code § 970 prohibits employers from "fraudulently inducing" employees to relocate to accept new employment. In this situation, "fraudulent inducement" essentially means lying to someone to get them to move and accept employment with your company.

If you can prove that you were lead to believe you were not being hired for one specific assignment, that your employer knew you believed that and that your employer's intention was to terminate you after that assignment was completed, then you will be able to sue your former employer.

Proof Can Be Easy in These Cases

In your situation, however, most judges and juries would easily believe you did not uproot your family and move to California just to take a six month temporary position. They also would be unlikely to believe the employer thought you agreed to that as the deal. The only thing left to prove is what the company thought would happen after the project was finished. This can be proven through e-mails, testimony and various other ways.

Damages are Tripled

Under Labor Code § 970, you can recover virtually any damages you can attribute to moving to take the new job and then being laid off. Your lost wages during unemployment, the cost of moving to California, the cost of moving back to Wisconsin if you move back, any costs you or your wife incur to get a new job, attorney's fees, and countless other damages are recoverable under this statute.

The best part of Labor Code § 970, though, is that you are entitled to recover "treble" damages. What this means is that whatever damages you are awarded get tripled as a penalty against the company. So, if you can recover $100,000 of damages for what the company did, you would be awarded $300,000 total.

The California legislature realized what an extreme hardship situations like these place on employees and their families. Often they find themselves having moved for a job that suddenly vanishes and they are left stranded.

Q: One of my co-workers has asked me to testify for in her discrimination case against our employer. I want to help, but I am afraid that my employer will retaliate against me if I help her.

--Want to Help But Scared (CA)

A: Both state and federal discrimination laws prohibit retaliation by employers against employees for participating in an investigation or prosecution of an employment discrimination or harassment case.

Investigation Outcome Irrelevant

Even if it turns out that the employee who complains about discrimination was not discriminated against, or even if that employee turns out to be lying, you are still protected from retaliation.

The law protects the act of speaking up for someone else, which is evaluated independently of the underlying discrimination claim.

Retaliation Can Be Subtle

This year's landmark Supreme Court case of Burlington Northern v. White, 126 S.Ct. 2405 (2006), clarified and strengthened protections for employees against retaliation in discrimination cases.

The Court decided that any actions by an employer that would "dissuade" a "reasonable employee" from making or supporting a discrimination complaint is illegal retaliation and proper grounds for that employee to sue.

What this boils down to is that if you are retaliated against and in hindsight you would not have participated in the investigation if you had known what your employer would later do to you for it, then those actions are likely illegal.

Co-Worker Assistance is Crucial

One of the major motivations for the Court in the Burlington case was the strong public policy in this country to encourage those employees who witness discrimination against others to speak up and testify if needed.

It is important for these witnesses to feel comfortable testifying against their employers on other employees' behalf if there was wrongdoing.

Q: There are rumors circulating at work that our boss is spying on employees with video surveillance. Is that legal?

--Private Eyes are Watching Me (CA)

A: The answer to your question is: it depends. Whether or not video surveillance at work is illegal depends largely upon the facts in a given situation. The main question is whether or not you have a "reasonable expectation of privacy" in the area that is being taped.

Examples

If the surveillance is occurring in a large open area where many people are working or passing through, such as a warehouse, a parking lot, or a retail checkout counter, it is less likely that an employee would have a right to privacy from surveillance there.

On the other end of the spectrum, it is very unlikely that an employer could argue there is no reasonable expectation of privacy in the employee bathroom or changing room.

The "Grey Areas"

The real "grey area" in these types of situations is locations like inside of an employee's private office, cubicles and other, more private areas.

A recent California court decision (Hernandez v. Hillside, Inc.) has helped clarify the situation, but the issue still depends largely on the specific facts of a case.

In cases dealing with such locations, an employer's policies become very relevant. If an employer has a clear, well-communicated policy that you may be videotaped at any time in any area of the building, this would be strong evidence in the employer's favor that you do not have a reasonable expectation of privacy anywhere in the building.

These types of policies are currently pretty rare, but other factors also come into play. For example, whether there is a door to your office, whether there is a lock on the door and the number and position of windows in the office are important factors.

A Simple Test

All of these factors basically are parts of the same basic question: does an employee have a reasonable expectation of privacy in a particular area at work.

One simple way to look at it is ask yourself whether or not you would reasonably expect to be able to change your clothes to go to the gym in a certain location and not expect to be interrupted or seen, such as in your private office with the door closed and the window blinds drawn.

If you would be surprised or offended to be watched or seen changing there, it is likely that you have a reasonable expectation of privacy there and video surveillance under those circumstances would be illegal.

Q: I work from a home office in California, but my employer is based in Illinois. I have many business expenses I pay out of my own pocket but my employer refuses to reimburse me for them. Is this legal in California?

--Paying the Company's Bills (CA)

A: In California, Labor Code § 2802 requires all employers to reimburse employees for any business expenses they incur "in direct consequence of the discharge of [his or her] duties". This applies to all employees in California regardless of where their employer is headquartered.

Home Office Expenses

These rules are especially relevant for employees such as yourself who work from a home office. For example, you may be entitled to reimbursement for your home office:

• Computer equipment;
• Fax equipment;
• Office furniture;
• Phone line and service;
• Cell phone and service;
• Internet service;
• "Rent" for the use of your home as an office;
• Utilities attributable to the home office;
• Supplies; and
• Any other expenses you pay to operate your home office.

All employees should keep in mind that these rules apply even if they do not work exclusively from a home office. If you regularly work at home on the weekends in your home office, it is quite possible that you are also entitled to reimbursement for these expenses from your employer, although to a lesser extent.

Mileage Reimbursement

All employees are entitled to reimbursement for mileage driven in their personal vehicle on behalf of their employer. Usually this is done on a "per mile" basis, often at the IRS rate, which is currently 48.5 cents per mile.

If you do not drive your own vehicle for work, but instead have a company car or fleet vehicle, you are entitled to reimbursement for any gas you buy for the vehicle, maintenance costs such as oil changes and repairs.

Attorney's Fees

When you bring a claim for unreimbursed expenses in California, you are also entitled to recover any attorney's fees you pay in pursuing your case. This is very helpful to employees because the harder an employer fights the case, the more they will have to pay the employee in the end.

Q: My boss is a real jerk. She harasses me for no good reason, calls me names and belittles me in front of other employees. Today I finally told her not to treat me like that anymore, because it interferes with my work and it is unprofessional. She fired me on the spot for complaining. Please tell me this is not legal in California!

-- A Woman Wronged (CA)

A: You are in luck. In California it is illegal under Labor Code § 232.5 to retaliate against an employee for complaining about "working conditions".

Unfortunately, the term "working conditions" has not been clearly defined by California Courts under this statute. For example, if an employee complains about the poor selection in the break room's vending machine and is terminated for the complaint, the language of the statute suggests that this would be illegal.

I actually believe that this example would be illegal. However, the employee would have to prove that their employer actually terminated them for complaining about the vending machine. The less believable it is that an employer would terminate an employee for a complaint, the less likely a judge or jury would be to decide the complaint actually triggered the termination.

However, your situation is almost certainly covered by the statute. If your complaint about how your boss treated you is really what motivated her to terminate you, then you would likely be able to pursue a wrongful termination case against your former employer.

Under such a claim you might be able to recover all of your lost wages, attorney's fees and certain penalties.

Q: I have worked for a company over 20 years and now I am retiring. I never took a vacation the last ten years I worked there. Each year I lost all of the vacation time I did not use. My son told me that is illegal in California. Is that true?

--Need a Vacation (CA)

A: Your son is correct. In California, so-called "use-it-or-lose-it" vacation policies are illegal. Once an employee accrues (earns) their vacation time, they cannot lose it and it must be paid out at the end of employment.

Recent Case Helps Employees

A recent California court decision has fixed a quirk in California law that used to only let employees recover four years of accrued but unpaid vacation time. The court in that decision held that when an employee leaves employment with an employer, he can recover all vacation time he accrued but never received payment for during his employment.

In your case, this is a substantial development, because you can now recover vacation time accrued but not used over the last twenty years.

Additional Penalties

In addition to your vacation wages, you may be able to recover additional money, such as attorney's fees, interest on your unpaid wages and "waiting time" penalties.

In California, employees whose employer does not pay out all of their vacation pay at the time their employment ends can recover "waiting time" penalties. Under this law, employees can recover one day of wages for each day their wages go unpaid for a maximum of thirty days' additional wages.

Also keep in mind that these are calendar days not workdays. So, over the course of 30 days the penalties would actually equal approximately six weeks of wages.