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When To Consult With California Employment Lawyer About Overtime

Updated: Nov 24, 2022

Find a Pre-Screened Employment Lawyer in Los Angeles for overtime work concerns


Employers may fail to pay their workers for their work and time in various ways. One of these methods is failing to compensate employees for the extra hours worked. Even though the majority of employees are eligible for overtime pay, not all of them receive it. When it comes to calculating overtime pay for their workers, most states in the United States obey federal rules.


That said, let's talk about unpaid wages in California law, how it affects you, and how the best California employment lawyers handle them.


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On the other hand, California has its own overtime rules that are different and tougher than federal laws. When it comes to remunerating their employees, employers should follow these rules.


Employees can claim their wages if their employers do not follow the rules. Filing a case against the boss is the most successful way to do so. You'll need legal assistance from an accomplished overtime solicitor if your lawsuit has a chance of succeeding.


The Overtime Law in Context


Most California employees are entitled to extra pay if they work more than a certain number of hours. Overtime compensation is a type of bonus that a worker can receive if they work more than a certain amount of hours in a workweek or workday.


Non-exempt employees must be paid extra compensation under California's overtime law if they work:

  • You would have worked for more than eight hours in a single workday.

  • You'll have worked for more than forty hours in a single workweek.

  • In a single workweek, there are more than six days.

According to the regulation, employers must also pay time and a half for the extra hours. Additionally, employers should pay for double-time overtime wages if an employee works more than twelve hours in one workday or more than eight hours on the seventh day of a workweek.


Employers should also compensate employees for unauthorized working hours that they (employers) did not seek or need. This is particularly true if the boss permits the employee to do the extra work.


A workday is 24 hours long. It could begin at any point during the day. However, subsequent workdays must start at the same time. Workdays do not have to start at the same time as a worker's shift. Additionally, an employer can designate different workdays for various shifts. Once workdays have been established, they are only changed if the change is permanent, not to stop paying overtime wages.


On the other hand, a workweek comprises seven consecutive twenty-four-hour cycles totaling 168 hours. These periods must begin at the same time and on the same day every week. A workweek can begin on any day and at any time as long as the day and time are consistent. The beginning point of any workweek, like the beginning point of a workday, cannot be modified once it has been created. It can only be changed if the move is permanent and not done to stop paying overtime wages.


Many non-exempt employees in California are entitled to overtime pay. The amount of overtime paid depends on the length of a worker's shift and the number of days worked during the workweek.


If you think your rights have been violated, you must consult an overtime lawyer in Los Angeles ASAP.


What is the Law's Purpose?


Paying higher wages for hours spent working more than the usual sum accomplishes two goals. For one thing, the additional payments are fair compensation for employees who forego breaks and work long hours. The second goal is that overtime pay encourages employers to hire more people rather than pay higher overtime wages. As a result, overtime leads to higher job rates while also saving jobs from overwork.


Since overtime legislation is essential, courts interpret it broadly to protect employees. As a result, courts will usually rule in favor of the employee if there is any ambiguity in the statute.


To explain the law, a workweek is described as seven consecutive days that begin on the same calendar day per week. The federal and California overtime laws of 2017 were created to protect workers and prevent employers from exploiting others who are unaware of the wage and hour laws.


According to California's Labor Code


Non-exempt workers are entitled to overtime pay under the California Labor Code. Overtime is described by California Labor Code 510 as when an employee works:

  • More than 40 hours a week

  • Workdays of more than 8 hours

  • If a worker works more than 12 hours a day, the employer must pay twice the normal rate for overtime over 12 hours.

If an employee works seven days in a row during the same workweek, all hours worked on the seventh day are considered payable over time. If the employee works more than 8 hours on the seventh day, all hours worked more than 8 should be charged at twice the normal rate. Consider one of our prescreened California Lawyers in your California Attorney Search.


The Fair Labor Standards Act was enacted in 1938


The Fair Labor Standards Act governs overtime pay in the United States. On the other hand, employers in California would adhere to the state's labor laws. The key distinction between federal and California overtime laws is that federal law only allows overtime pay for over 40 hours worked in a week, while California law requires overtime pay for an excess to 8 hours worked in a day. Employers must obey the legislation that provides workers with the strongest protections as federal and state laws regulate the same subject (usually California law).


OT Exemptions in California


In California, not all workers are entitled to overtime pay. Salaried employees should not get overtime, regardless of how many hours they work. On the other hand, employers also misclassify staff as salaried "exempt" to avoid paying hourly workers overtime. Misclassification is a problem that occurs frequently.


Employees can only become excluded (salaried) if they fall under one of the exemptions mentioned below. They are, however, perplexing. So, contact a California Employment Attorney if you believe you should be charged by the hour.


Under the California overtime rule, the following are the legal overtime exemptions:


1. Executives


Executives are excluded from the California overtime rule unless they spend more than half of their time at work overseeing a company's corporation or divisions.


Employers sometimes use the "Executive Exception" as a legal shield in overtime cases. For an employee to be excluded from the "executive exception," the employer must show that the employee meets any of the following criteria:

  • The employee's responsibilities include the actual management of a company or a recognized department of a company.

  • About half of the employee's weekly work time is spent on real exempt work.

  • The employee supervises the work of two or more coworkers (or the equivalent of 80 hours a week of subordinate time)

  • The employee has the authority to recruit or dismiss other workers and make suggestions for the hiring, firing, or promotion of others (which are given weight by the employer).

  • On the job, the employee uses independence and independent judgment daily.

  • The employee must be salaried and work full-time. The monthly payment for full-time jobs in California must be double the state's minimum wage.

  • The employee is "non-exempt" under the executive exemption and may be paying overtime if the employer cannot show any of the above elements.

  • Employees who have spent more than half of their work time assisting the proprietor or another exempt employee are eligible for overtime exemptions.

This exception extends to those who assist or administer the employer's or customer's business relations. Administrative work cannot include producing goods or providing services that the employer sells or markets, and administrative employees must work closely with exempt employees or under just general supervision.


2. Administrative


For an employee to be excluded from California's administrative exemption, the employer must show that the employee meets any of the following criteria:


  1. The employee's roles and responsibilities include office or non-manual work that is specifically related to management practices or the employer's or customers' general business operations.

  2. Each of the following is done by the employee:

    1. Assists the company owner or another exempt employee on a regular and direct basis

    2. Who performs advanced or technical work requiring specific training or expertise under general supervision?

    3. Who is in charge of completing special assignments and activities with only general supervision?

    4. Exempt administrative tasks take up more than half of the employee's weekly work time.

    5. The employee uses "discretion and impartial judgment" daily.

    6. The employee must be salaried and work full-time. For full-time jobs, the monthly salary must be twice the minimum wage in California.

If the employer can't prove any of the above, the employee is considered "non-exempt" under California law's administrative exemption.


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Notes On Executive and Administrative Exemptions


For the purposes of the Executive Exemption, what constitutes "executive" work?


Only workers who spend more than half of their time on management work are eligible for the executive exemption. The law looks at what workers really do on the job rather than their job names. The following are some examples of exempt management work:

  • Employee recruitment and training

  • Changing pay scales and working hours

  • Supervising and directing the work of subordinates

  • Employee discipline

  • Organizing or delivering jobs, as well as deciding on work strategies

  • Choosing the products, equipment, machinery, and tools that will be used, as well as the goods that will be purchased or stocked

  • Non-exempt jobs, on the other hand, include the following:

  • Working in the same capacity as subordinates

  • Making sales, replenishing stock, and restocking shelves are all things that need to be done.

  • Bookkeeping, cashiering, billing, and filing are all common clerical tasks.

  • Doing regular inspections

  • Working on a production or service project

Managers of restaurants, convenience shops, service stations, and motels are often misclassified as excluded, according to the California Division of Labor Standards Compliance, since they spend the majority of their time cooking, selling on the floor, cashiering, pumping gas, fixing machinery, and working as a desk clerk.


Since they do not routinely direct the work of other staff, assistant managers (employees who support the department manager) are often considered non-exempt. In most cases, trainees are not deemed excluded.


For the purposes of the Administrative Exemption, what constitutes "administrative" work?


Advising management, organizing, bargaining, representing the organization, buying, and business research and control are all examples of administrative work. Furthermore, administrative work must have a significant impact on company operations. This involves the development of management policies as well as the responsibility for putting them into action. The administrative function does not include making purchases, manufacturing products, or providing the services that the employer sells or markets.


Bell v. Farmers Insurance Exchange, a recent case, exemplifies these points. According to the court in Bell, Farmer's claims members were not administrative workers since they spent their time adjusting claims, which was the main feature of the claims offices where they worked. Second, managers of claims members managed the larger and more significant claims. According to the court, their work was limited to "routine" matters, making them more like factory staff than administrative personnel. The court determined that they were non-exempt and entitled to overtime on this basis.


Non-exempt employees include the following:

  • Employees of a title business who operate in escrow

  • Employees of an electrical supplier who work as indoor wholesale salespeople

  • Border enforcement officers and police investigators

  • Those who work for a tourist bureau as convention planners

  • Electronics technicians are repairing satellite equipment

  • Adjusters and inspectors for insurance claims

  • Computer experts perform easy programming

  • For television stations, news producers and sports broadcasters are required

  • Officers in charge of probation

According to the Department of Labor, bookkeepers, secretaries, and clerks are not doing work specifically related to management practices or general business administrative work while they conduct routine tasks. In addition, trainees are not excluded.


Employers cannot classify employees as exempt based on false or unrealistic job descriptions.


The legislation examines an employee's work to see if he or she is excluded, focusing on what the employee should be doing considering the job's practical requirements. This prohibits employers from classifying workers as excluded based on a false job description, and it also prevents employees from being non-exempt due to poor performance. The courts examine what workers are expected to do. This is true with all exemption statutes.

The courts will look at how the employee spends his or her time on the job first. The court would then equate the employee's work to the employer's reasonable expectations, taking into account whether the employer was dissatisfied with the employee's work and whether that dissatisfaction was reasonable given the job.

As a result, how workers are measured, whether formally or informally, is critical. Does your boss, for example, compare your non-exempt sales to those of subordinate employees? This increases the chances of being non-exempt. What do the formal assessments of the employer say? Almost every part of the employee's work is included in the list of essential topics. As a result, an experienced California Employment Attorney is needed in these cases.


Employees who do some exempt work but also do "making" or "support" work often cause confusion about the exemption. In California, regardless of how many exempt duties an employee has, if the job allows the employee to work more than half of the time in non-exempt work, the employee should be considered non-exempt and entitled to overtime.


The federal legislation is the polar opposite of California's: it prioritizes the employee's responsibilities over the amount of time they spend on any given job. Burger King restaurant managers, for example, were found to be doing exempt management work even when flipping hamburgers under federal law because they were simultaneously thinking about management (an exempt executive task).


California legislation has the opposite effect: burger-flipping will be considered non-exempt work time, regardless of the employee's responsibilities or thoughts. (In California, workers who are non-exempt under state law but exempt under federal requirements are considered non-exempt and are entitled to overtime pay.)


What Constitutes Discretion and Independent Judgement?


To be excluded, most exemptions require that an individual practice "discretion and impartial judgment" in their job daily. This means the employee must consider the pros and cons of various options before recommending (and giving weight to) a course of action. The decision must be taken without immediate supervision and in the context of important business matters. The shipping clerk may choose how to prepare a package, and the bookkeeper may choose which ledger to post first, but these are minor decisions.


Skills and processes are distinguished from discretion and impartial judgment. Employees who rely solely on their experience and procedures fail to exercise discretion and impartial judgment. In California, for example, a sportscaster was found not to use discretion or impartial judgment in putting together an entertaining sports newscast; his ability to put together an entertaining sports newscast came from his skillful application of station standards and various industry techniques.


Non-Salaried Can't Have Deductions


Employees that are not salaried are considered non-exempt under state and federal law and must be paid overtime. A paycheck means that the employee is paid the same amount each pay cycle, regardless of whether there is work or not, whether the work is good or bad, whether the employee is present or not, and whether or not there are disciplinary issues. In most cases, an employer cannot tinker with an employee's salary. If an employer deducts job quality or quantity from an employee's "salary," the employee is neither salaried nor excluded. The salaried employee must be paid the full salary even though no job is to be completed.


A salaried employee's salary cannot be docked for disciplinary reasons when remaining "salaried" for overtime purposes. It is not permissible for an employer to subtract less than one day for disciplinary purposes. Employers can't fire employees for missing a few days or doing bad work, so they must find other ways to solve the problem. The only exception is when it comes to critical safety concerns.


Furthermore, a "salaried" worker's pay cannot be deducted for jury service, attending court hearings as a witness, or temporary military leave for a portion of a workweek.


Sick leave or absences can be deducted, but only for periods of one day or more and only by a legitimate scheme or procedure of offering additional benefits for such sick time, i.e., sick days.


Employees who are paying hourly salaries, commissions, or piece rates are not eligible for administrative, executive, or technical exemptions from overtime pay.


The Exception for Skilled or Learned Artistry


Employees with a license to practice a trade are eligible for the Professional or "Learned or Artistic" Exemption. Registered nurses, pharmacists, and the majority of school teachers, on the other hand, are not excluded from these laws.


The "Learned and Artistic" Professional Exemption is defined as follows:


For an employee to be excluded under the Professional or "Learned or Artistic" Exemption, the employer must show that the employee meets any of the following criteria:

  1. Either the employee:

    1. It is mainly engaged in the practice of law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting and is approved or accredited by the State of California.

    2. Spends more than half of their working time in a career that is widely known as a learned or creative one. Work that involves specialized expertise of science or learning as a result of extensive learning and study is classified as "learned or creative." This work is often innovative in nature, taking place in a recognized area of artistic endeavor that is primarily academic and diverse in nature (as opposed to routine mental, manual, mechanical, or physical work).

  2. On the job, the employee uses independence and independent judgment daily.

  3. The employee must be salaried and work full-time. The monthly payment for full-time jobs in California must be double the state's minimum wage.


Learned and Artistic Work Exemptions

  • Registered nurses, pharmacists, and most school teachers are not excluded.

  • This exception applies to professionals who have completed extensive academic research in advanced courses. Exemptions would not be granted to those who have received a general formal education, apprenticeships, or training in performing routine, manual, or physical labor.

  • To be excluded, the work or its performance cannot be standardized about a specific time span.

  • The employer cannot rely on false or fabricated work descriptions to escape liability, as with all other exemptions.


Exemption for Computer Programmers


Computer programmers and computer systems analysts are excluded from this requirement. This exception extends to those who spend more than half of their working time on the following:

  • Systems analysis methods and procedures are used to assess hardware, software, or functional device requirements.

  • Computer system or software design, development, testing, or modification based on user or system design requirements.

  • Computer program testing, development, or modification related to software or hardware design for computer operating systems.

  • This exception, however, does not apply to a wide range of computer workers, including trainees, entry-level jobs, and people who fix or maintain computer hardware.


California Computer Software Exemptions


A Computer Software Employee must meet the following criteria to be exempt:

  • Be able to apply highly specialized knowledge to computer systems analysis, programming, and software engineering in both theoretical and practical ways.

  • The employee's hourly pay rate is not less than $41.00, as determined by the California Consumer Price Index for Urban Wage Earners and Clerical Workers as of January 1, 2001.

  • Be primarily involved in intellectual or artistic work, and

  • Use independence to make your own decisions.

If the employer cannot demonstrate any of the above, the employee is considered non-exempt, and overtime pay and other benefits are available.


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This exemption does not extend to the following items:

  • Those who are still learning

  • Employees in entry-level roles who are learning to apply computer systems and technologies in a theoretical and realistic manner

  • Employees who lack the requisite skills and knowledge to operate independently and without supervision

  • Employees who are solely responsible for the operation of computers. Engineers, drafters, and machinists who use CAD/CAM tools are included

  • Employees who work in the computer hardware and associated equipment industry (manufacturing, repair, or maintenance)

  • Employees that create material for the World Wide Web or CD-ROMs, among other items

  • Employees who work in the motion picture, television, or theatrical industries and create imagery for effects

  • The employer cannot rely on false or fabricated work descriptions to escape liability, as with all other exemptions.

There was no Computer Software Exception before September 2000. As a result, those workers were and are still entitled to overtime pay for that time period. Wages earned three years (and in some cases four years) before today's date are recoverable, but only up to those earned in September 2000.


Outside Salesperson Exemptions


This exception focuses on the employee's responsibilities and the location where they are carried out. An exempt outside salesperson is someone who spends more than half of their work time selling outside their employer's location.


The federal law is similar, except that it prohibits exempt outside salespeople from spending more than 20% of their time working for non-exempt workers. This ensures that if an employee spends considerable time on tasks other than selling outside the company, their work should be scrutinized closely to decide if they are eligible for the outside salesperson exemption.


The employer cannot rely on false or fabricated work descriptions to escape liability, as with all other exemptions.


The Various Issues Concerning OT Pay


Because many employers do not want to accept the full amount of time their workers work, overtime pay is often ignored. Here are a few of the most common problems:

  • Overtime is waived.

  • Employees cannot opt-out of being charged for extra hours worked.

  • Employers are required to pay for any time worked after 8 hours a day and 40 hours a week.

  • Work that is done "off the clock."

If an employer knew or should have known that an employee was working outside of normal business hours, that time must be compensated. Off-the-clock work is work performed while an individual is not punching in on the time clock. Employers also ask staff to work over their lunch break or to clock out at the end of the shift while continuing to perform their duties. This job should be fairly paid.


For piece-rate jobs, overtime compensation hasn't been paid


California's overtime laws apply to employers who pay workers on a piece-rate wage structure, with certain exceptions ( that a set amount of pay per unit completed). If a piece-rate employee has worked more than 8 hours per day or 40 hours a week, the employer is responsible for compensating the employee for the extra hours. However, the problem is determining how to determine that number. This is a difficult situation.


Rest periods have been set aside


Employees are entitled to two 10-minute on-the-clock rest periods during an 8-hour workday. If an employee takes all 10-minute breaks and works 8 hours and 20 minutes daily, the overtime rate should be applied to 20 minutes.


California's Mandatory Lunch Breaks And Waivers


Non-exempt workers who work shifts of five hours or more are entitled to a 30-minute meal break during their shift. The employee is entitled to two 30-minute meal breaks if the shift is longer than 10 hours. Generally, the employee must be relieved of all responsibilities during these meal breaks. During meal breaks, hourly workers are normally expected to "clock out." Although employers must provide these meal times to non-exempt workers with few exceptions, employees can forego meal breaks during shifts of less than six hours.


Meal Breaks Denied, Waived Penalties


If an employer refuses to let an employee take a meal break, the employee is entitled to a one-hour pay penalty at his or her normal hourly wage. Employees and employers may, however, agree to waive the meal break requirement. On the other hand, the agreement must be in writing, and the employee must be able to terminate it at any time.


Penalties And Mandatory Rest Periods


According to California law, employers must also have a policy that encourages non-exempt workers to take scheduled rest breaks. Employees are entitled to a 10-minute rest break for every four hours worked. Employees whose employer refuses a rest break are entitled to one hour of pay at their daily salary for each day they were denied a rest break.


Time spent traveling


The time an employee spends traveling during the course of his or her job, as directed by the boss, is counted against the number of hours worked. Driving to a trade show to represent the business, driving to sales meetings, and driving to meet with clients for lunch are all examples of work travel.


Is Travel Time in California Overtime?


Is drive time considered overtime in California? As you can see, travel time counts as overtime only if you work more than forty hours a week, and some travel time is unpaid. Travel time is considered part of your daily salary, and you should be compensated accordingly. According to federal employment law, if you work more than 40 hours in a week, you are entitled to at least 1.5 times the standard rate of pay for each hour worked over 40.


Employers could be entitled to the compensation that workers will earn on a normal workday while an employee is on an overnight vacation, as well as overtime pay if the time spent working reaches 40 hours. Time spent eating out, staying in a hotel, or doing other things unrelated to your job is not reimbursable.


Contact our prescreened Employment Lawyer in Los Angeles if you have any further concerns about what constitutes work during travel time and overtime pay.


Overtime that is "necessary."


When determining the sum of overtime, the necessity of overtime is not considered. All that is required is that the employee works overtime. It makes no difference if the employee should have completed the job the next day rather than staying late today to complete a project.


What if The Boss Isn't Willing to Pay You Overtime?


Unpaid overtime claims are the most common and important form of a lawsuit filed under the wage and hour laws. According to studies, California has the highest number of unpaid overtime cases compared to other states. Unpaid overtime may result from employers failing to recognize wage and hour laws. It may also be a form of wage theft in some cases. Employers who wish to follow the legislation should familiarize themselves with overtime regulations.


Workers must also be aware of their overtime pay entitlement to receive more due salaries.


Workers have the right under the law to file a wage and hour claim against employers who neglect or refuse to pay them overtime as required by the law. If the case is successful, an employee may be entitled to the following benefits:

  • The accrued overtime pay withheld by the employer

  • On the sum of overtime pay, there is interest.

  • Attorney's fees and legal expenses that are reasonable

An employee whose employer has denied overtime is usually not alone. You will enter a class-action lawsuit brought by an accomplished Los Angeles Employment Lawyer if the employer consistently fails to pay you for your overtime work.


What Would a California Employment Attorney Do for You?


Collecting the overtime pay you are owed takes a lot of work and evidence. If you employ an overtime lawyer in Los Angeles, he or she will help you determine how much overtime pay you are due and guide you through the process of receiving it. To do so, the Los Angeles Employment Lawyer will help you collect documentation such as paystubs, timesheets, work agreements, arbitration agreements (if applicable), and any other facts you will need.


The first move is to use those records to estimate how much unpaid overtime there is. The judge has not formally accepted your case. The prosecutor is more inclined to consider the argument if the overtime owed is substantial and the allegation has a reasonable chance of being proven. If the solicitor refuses to take the case for any cause, you might be referred to the Department of Industrial Relations or the Labor Board.


If your case is admitted and a Los Angeles Employment Lawyer is assigned to you, you will most likely go through the following steps:

  • Your counsel will determine if the lawsuit can be filed as a class action or as an individual action. The lawsuit will be filed and served on the employer by the council.

  • Your legal team will perform discovery, acquire records, locate witnesses, and gather as much information as possible to make your case at this time.

  • Your counsel would attempt to reach an amicable agreement outside of court so that you can participate in mediation. Your Los Angeles unpaid overtime lawyer will take the case to trial if the employer refuses to negotiate.



If your employment rights have been violated, don't hesitate to file claims—even if it's against your California Employer—with a wage-and-hour attorney.


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