California-Delivery-Drivers-Have-Rights-Too.jpg (2149×1159)Delivery drivers have a pretty hectic work life, and the last thing that they need is to be treated as though they have no rights while on the job. In fact, delivery drivers do have rights. Two important ones rights for drivers are:

To Be Paid Overtime

The federal rule about overtime is that if you work more than 40 hours in a week, your employer owes you the regular rate plus half the rate for every hour over 40. The 40 hours that you work have to be within a time frame of 168 consecutive hours, and that 168 hours can start at any time in the day.

California has more stringent rules: we judge overtime by the day instead of the week, so if you work for more than 8 hours within any given day, you get paid time and a half for the excess time.

However, delivery drivers are only sometimes protected by the California law, and only sometimes covered by the federal law. Drivers also have to be employees of the company paying.

The federal rule is from the Fair Labor Standards Act.  It applies to most drivers, but the act exempts anyone whose job is critical for the safety of the cargo and crosses foreign or state lines. It also exempts local delivery drivers, driver’s helpers, and people transporting produce.

You might qualify for California’s more generous overtime pay laws if your vehicle weighs less than 26,001 pounds, doesn’t tow anything that weighs more than 10,000 pounds, and your motor truck with 3 axles weighs less than 10,000 pounds. You won’t qualify for overtime under the federal or the state law if you transport hazardous materials, or if you drive a truck that crosses state lines and is heavier than 10,000 pounds or carries more than 8 people. 

All of this assumes that you’re an employee and your union or work contract doesn’t specify some other pay schedule.

To Get Proper Meals And Rest Breaks

California is famous for its strict laws concerning meal periods. According to the Division of Labor,  all employees who work for more than 5 hours must get at least half an hour to eat lunch. This time has to be uninterrupted, meaning that the employee is not doing anything work-related. If he or she is on-call, this time must be reimbursed at the regular rate. Anyone working for more than 10 hours is supposed to have a 2nd half-hour off.  An employer doesn’t have to stop you from doing any work, but they have to relieve you of your duties and not stop you from leaving. If your company is exclusively interstate, this rule applies to you.

The Federal Motor Carrier Safety Administration has a similar rule: all drivers have to get a half-hour meal break during the day when they have no responsibilities concerning the trucks and the loads. 

The Administration even rules that all drivers may take at least 8 consecutive hours off to sleep, though they can take less than that if they nap.

However, the FMCSA has different rules about when the driver must take his or her lunch. If your company operates across state borders, you come under the Department of Transportation hours-of-service regulations, which are looser and less generous than California’s meal rules. The FMCSA’s hour rules will apply to you if you meet certain conditions. Some of these conditions are that your vehicle weighs more than 10,001 pounds or has a gross vehicle weight rating or gross combination weight rating of more than 10,001 pounds. The FMSCA meal breaks also apply to you if you can or you do transport 16 or more passengers but don’t charge for it, your vehicle is supposed to move 9 or more passengers and the driver gets paid for it, or that you move enough hazardous materials to require placards. The number of passengers always includes the driver.

    Of course, it is hard to track a trucker’s hours. The FMCSA will count a half-hour lunch as being taken even if the driver has a pager or phone on him or her, and employers have to rely on employees accurately recording how they spent their time.  

What Do You Do If Your Rights Have Been Violated?

If your employer is refusing to pay you overtime when you are entitled to it under California law, you should contact the Department of Labor Standards Enforcement. If you qualify for overtime under the federal law, definitely contact the Department of Labor. Both have websites that have ways to report the problem and file a complaint. A great idea would be to contact a lawyer that specializes in employment law. Delivery drivers have complicated schedules and difficult cases. Having expert legal help will make it easier to decide on what to do next.

Fortunately, Aiman-Smith & Marcy, a small-medium sized law firm, can help. We specialize in employment law, class actions, and consumer fraud.

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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