6-Situations-Where-You-Should-Consult-an-Overtime-Pay-Claims-Lawyer-Part-2.jpg (2149×1159)[Continued from Part 1]

Welcome back to the second half of our two-part article. Last time, we talked about how employers commonly deny overtime through one of many methods in order to save money, take advantage of employees, and sometimes from simple incompetence. Join us again today as we pick up where we left off.

Your Employer Has Altered Your Role to No Longer Qualify as Exempt

Keep the requirements for exemption in mind as we move forward. Because along the same lines is being denied overtime in a role that has altered from exempt to non-exempt. Which is something that happens surprisingly often, and is referred to as failing the ‘test of duties‘ to qualify for exemption.

Let’s say you originally accepted a position that pays over twice minimum wage and where you had a lot of autonomy. But at some point, your boss decides to dock your pay (not allowed for exempt employees) or starts to micro-manage your time.

Suddenly, an exempt position with autonomy and financial stability has been reduced in wages or your autonomy removed. And magically, you are no longer exempt. Not only does your employer now owe you overtime for any 40+ hours worked from this point on. They may also owe you overtime back pay for any extra hours you worked since the role changed or even before that.

Your Employer Is Claiming You Are an Independent Contractor Who Doesn’t Get Overtime

Another form of misclassification is to claim that you are an independent contractor instead of a genuine employee. But this, too, has a legal definition that must be met. An independent contractor is free to work with other clients. They are free to set their own schedule and to work independently. A contractor may be able to choose whether they come into the office or work from home. And — we might add — has a contract with binding agreements on both sides for employer and contractor responsibilities.

If you don’t have a contract, you’re not a contractor. If your employer makes you clock in, if they micromanage your work, and if they get to decide when you work extra hours, you’re not a contractor. You’re an employee and therefore are legally required to be paid as an employee. But this kind of misclassification almost always requires legal intervention to fix because your employer has willfully filed the wrong paperwork and is using the wrong legal terms to define your employment. Even if they are treating you like a wage-slave employee.

Your Employer is Trying to Give You Comp Time Instead of Overtime

Finally, there are employers who know where they stand. They know you are an hourly employee and aren’t pretending otherwise. They know they owe you compensation for extra hours worked, but they still don’t want to pay overtime. A common mistake employers make is to think they can offer comp-time instead. What this means is that your employer offers you time off instead of overtime pay.

While there are some situations where comp-time is legal, like if you work a holiday you didn’t want to and your employer offers you an extra paid vacation day at another time. But comp-time for overtime is always illegal unless your employer is offering that vacation day, at time and a half. All overtime is paid at time and a half, no matter how your employer chooses to pay it. And if they’re trying to cheat you out of that ‘And-a-half’ with promises of vacation time, this is a legal violation that you can fight in the courts.

Has your employer been denying your rightful overtime pay and the overtime pay of your coworkers? If this is more than an accident you can fix with a quiet word to HR, then it’s time for some legal intervention.

Here at Aiman-Smith & Marcy, we are dedicated to standing up for employees in the face of mistreatment by employers. Whether that mistreatment is criminal incompetence or intentional worker exploitation. With the help of our experienced workplace law team, you can force your employer to face their illegal pay denial and make it right with each person who has worked uncompensated overtime. For more information about overtime pay law or a consultation on your unique workplace situation, contact us today!

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Lisseth Bayona


Education and Background

I am a Los Angeles native and daughter of Salvadorian immigrants. From an early age, my parents instilled the value of hard work and education in me and my two siblings. Their perseverance enabled each of us to graduate from college and earn professional degrees.

My interest and commitment to workers’ rights have roots in my parents’ experiences as undocumented workers in Los Angeles. Witnessing the challenges they faced inspired me to pursue a career where I can help individuals confronted with similar struggles. To help someone in those moments is very satisfying. I love connecting with people and learning about their stories. I believe that dignity in the workplace is a right of all workers, not a convenience or privilege reserved for employees of a certain race, gender, age, sexual orientation, or gender identity.

Legal Experience

I received my J.D. from the University of Southern California (USC) Gould School of Law. While there, I served as a judicial extern to the Honorable Patrick J. Walsh of the United States District Court for the Central District of California, where I drafted a criminal judicial opinion. Also, while at Gould, I served as an extern for the U.S. Attorney’s Office for the Central District of California. As a Criminal Division Extern, I had the opportunity to work closely with a trial team of Assistant U.S. Attorneys on a money laundering case which further sparked my interest in litigation.

Personal Interests

In my free time, I enjoy urban vegetable gardening, traveling, and spending time with my nephew and niece. I also love to spend time at San Onofre Beach learning to surf, although admittedly, I am not very good.



Hallie L. Von Rock

Attorney (SBN 233152)

Education and Background

I moved to the Bay Area from Washington after graduating high school. I had been accepted to UC Berkeley through a program where I could defer for two years while getting my California residency and attending community college, which was significant since I was paying for college on my own. I began working for Randall Aiman-Smith and Reed Marcy in 1996 as an office manager while taking night classes. My first foray into the legal world was soon after starting at the firm when I was ready to transfer to UC Berkeley. Rather than accepting my resident status, the Board of Regents took the position that California residency required a student to be in California “two calendar years.” Randall and Reed took up my case with the same verve as they helped their actual clients and I got the chance to comb through the UC Berkeley library to read their codes and regulations to support my position. In that experience, I learned what is was like to feel helpless against a big organization and then to have dedicated attorneys in my corner to take up my cause.

After a break to pursue my major in art history, I went to UC Hastings College of Law and continued working with Randall and Reed. Having worked together now for over 25 years, we have a unique ability to work collaboratively and finish each other’s sentences. I have strived throughout my career to make a difference in the lives of our clients. At the end of the day, if I am helping someone to get compensation for losses they suffered, then I know that all the work put into a case has been worth it.

Legal Experience

I have extensive experience in civil litigation and class action cases, including conducting discovery and depositions, calculating damages analysis, preparing motions for certification, writing appellate documents, and overseeing claims administration. We have handled several class actions against retailers where plaintiffs claimed they were forced to purchase clothing to wear to work and were not compensated for these purchases, including against Abercrombie & Fitch, Hugo Boss, Armani Exchange, Uniqlo, Dollar Tree, and Ross. Recently, I was trial counsel in a defamation claim against Bank of America on behalf of a former employee who claimed the Bank blacklisted her with future employers. The jury found Bank of America liable, including for punitive damages.

Personal Interests

Aiman-Smith & Marcy has sponsored me in the Boston Marathon and New York Marathon. When I race, I often wear a “Rockstar Ronan” shirt to support research for childhood cancer through The Ronan Thompson Foundation.


University of California, Berkeley, B.A., 1999

Hastings College of the Law, University of California, J.D., 2004

Randall Aiman-Smith

Abogado (SBN 124599)

Aiman-Smith & Marcy. Oakland consumer fraud attorneys.

Educación y antecedentes

Fui afortunado. A pesar de no haber terminado la escuela secundaria o la universidad, pude -aunque con mucho trabajo- ser admitido y sobresalir en una de las mejores escuelas de derecho del país: La Facultad de Derecho de la Universidad de Berkeley. Mientras estuve allí, tuve el privilegio de ser editor de la California Law Review y miembro del Moot Court Board, asesorando en la redacción de escritos y en la defensa de apelaciones a otros estudiantes. Después de salir de la escuela de derecho, en mis primeros años de práctica, enseñé la escritura legal y la defensa de apelación en la Universidad de California, Hastings College of the Law. También, a lo largo de los años, he sido presentador en eventos de educación legal continua.

Experiencia legal

He sido abogado durante 35 años. He dedicado mi práctica exclusivamente a representar a empleados, consumidores e inversores en los tribunales estatales y federales de primera instancia y en los tribunales de apelación. Me gusta ir a los tribunales por mis clientes y he llevado muchos casos con jurado en los tribunales estatales y federales.

¿Ejemplos? En 2010, fui la abogada principal, junto con los otros abogados del bufete, en el caso Williams v. Union Pacific Railroad donde, después de cuatro años de preparación, el bufete obtuvo un veredicto del jurado de 1.670.000 dólares para una empleada afroamericana. En Rivero v. Surdyka, fui el abogado principal en el juicio y la apelación de un caso de derechos civiles que duró 15 años, incluyendo un juicio completo y tres apelaciones al Noveno Circuito, concluyendo finalmente con una sentencia para los demandantes de más de 2.300.000 dólares. Estos casos ilustran el lema del bufete: compromiso – resultados. Hay que comprometerse con un caso, a veces durante mucho tiempo, para obtener el resultado que el cliente merece.

No siempre ganamos en el juicio. Cuando eso ocurre, el compromiso significa llevar el caso al siguiente nivel y recurrirlo. En el caso Rivero, antes mencionado, eso fue lo que ocurrió: el tribunal desestimó el caso -habíamos perdido- pero apelamos y conseguimos una victoria para nuestros clientes que mantuvimos a través de dos apelaciones más. Desde entonces, el bufete ha conseguido muchas victorias en apelación que reivindican los derechos de los empleados y los consumidores.

A lo largo de los años he sido abogado de los demandantes en numerosos casos individuales y acciones colectivas. Puede sonar cursi, o difícil de creer, pero después de todo este tiempo, y después de todas las grandes experiencias que he tenido, mi parte favorita de ser abogado es cuando consigo dar un cheque a mi cliente.



Facultad de Derecho, Universidad de California, Berkeley, J.D., 1986