Q: I wanted to know if I have a case against my employer
Hi, I have a work situation. I work under a job agency and they found me employment working for a Cherokee Nation project. I was told if I worked in a certain area at that job that I would be paid time and a half. So I volunteered to work in that specified unit. When I tried entering my hours on our job app for the job done it didn't give me the option to enter it as time and a half, only as regular hours. I contacted my recruiter and he said that it was a misunderstanding, that they will not be paying time and a half because Cherokee Nation changed their minds. Do I have a case?
A: The answer to your question will have to be provided by one of only a few attorneys who practice Cherokee Nation law. California law will not apply, unless you have a contract that specifically says California law applies.
Good luck to you.
Maya L. Serkova agrees with this answer
1 user found this answer helpful
A: In California you are considered an at will employee unless you have a valid contract to the contrary about your employment status. At will employment essentially describes a working environment in which employers are free to change the terms of employment or terminate employees at any time, without cause, explanation or prior warning provided it does not violate state and federal anti-discrimination laws.
CA Labor Code codifies the right to overtime compensation at one-and-one-half (1½) the regular hourly rate for hours worked in excess of eight (8) hours in one (1) workday or forty (40) hours in one (1) workweek or for the first eight (8) hours worked on the seventh day of work, and to overtime compensation at twice the regular hourly rate for hours worked in excess of twelve (12) hours in one (1) workday or in excess of eight (8) hours on the seventh day of work. In your case, if you have not worked any overtime hours, you are not entitled to overtime compensation by law.
If you have an agreement with your employer that clearly articulates that your compensation rates are different from what is prescribed by law, you may have a claim for breach of contract but you first have to prove that you have a valid contract.
Maya L. Serkova
A: My previous answer was provided on the assumption that California law applies. If it does not apply, then as my colleague suggested you need to contact attorneys who practice Cherokee Nation Law.
1 user found this answer helpful
A: Unfortunately, native tribes have a form of "sovereign immunity", like states and the federal government. As a result, courts have held that many laws of general application, like the Federal Labor Standards Act, do not apply to them unless the tribe has expressly waived of their immunity.
Hopefully, there is a waiver in the contract. If the job agency told you that you would be paid overtime, then you may have a claim against them.
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