A California Wage And Hour Attorney Will Protect Your Rights
California employers must follow the California Labor Code and applicable federal laws. Employers must carefully follow these laws, or they risk a wage claim in court. If you believe your employer has violated wage and hour laws, you may have a case against them, and a California wage and hour lawyer will evaluate your case and fight for your rights.
UNPAID MINIMUM AND OVERTIME WAGES IN CALIFORNIA
Federal and state wage and hour laws are complex, and violations can be costly for both employers and employees. California law shares some similarities with federal law but also contains important differences. Generally, California has a highly developed body of wage and hour law that usually exceeds federal requirements.
Common wage and hour disputes in California include:
- Failure to Pay Minimum Wage (State and Local)
- Failure to Pay Overtime
- Failure to Pay for “Off-the-clock” Work
- Failure to Provide Meal and Rest Breaks
- Failure to Pay Earned Vacation
- Failure to Pay Expense Reimbursements
- Failure to Pay Earned Commissions and Bonuses
- Failure to Pay Earned Tips and Gratuities
UNPAID MINIMUM AND OVERTIME WAGES
Under California state law, hourly employees are entitled to be paid at least minimum wage for any hours worked up to 40 hours per week. Employees who work more than 8 hours per day or more than 40 hours per week are entitled to be paid overtime. Failure to pay minimum wage or failure to pay overtime can expose the employer to legal liability, employees can sue their employers for failure to pay minimum wage or failure to pay overtime.
Unfortunately, it isn’t always clear when these violations occur. Employers may try to pressure employees to work “off the clock” or prevent them from taking lunch breaks. Raising these issues with your employer can be difficult, particularly for employees who are afraid of losing their jobs. If you believe that your employer has not paid you the correct wage or is withholding overtime pay, a California wage and hour attorney can be your advocate for fair treatment.
CALIFORNIA STATE-MANDATED MINIMUM WAGES
Employers must comply with the state-mandated minimum wage established by the California Legislature. Employers must also comply with the local minimum wage ordinances established by a growing number of counties and cities across the state.
The California Minimum Wage will increase every year between 2018 and 2023, based on the following schedule:
Schedule for California Minimum Wage rate 2018-2023.
|Date||Minimum Wage for Employers
with 25 Employees or Less
|Minimum Wage for Employers
with 26 Employees or More
|January 1, 2018||$10.50/hour||$11.00/hour|
|January 1, 2019||$11.00/hour||$12.00/hour|
|January 1, 2020||$12.00/hour||$13.00/hour|
|January 1, 2021||$13.00/hour||$14.00/hour|
|January 1, 2022||$14.00/hour||$15.00/hour|
|January 1, 2023||$15.00/hour|
Standard Minimum Wage: $15/Hour
The minimum wage is the entry-level hourly wage paid to employees by their employer.
Tipped Minimum Wage: $15/Hour
The tipped wage is the base wage for employees who earn tips (such as servers and bartenders). Tipped employees are guaranteed to earn the minimum wage when tips are included.
|MINIMUM WAGE||TIPPED WAGE|
|East Palo Alto||$15.60||$15.60|
|Fremont – Employers of 26+||$15.25||$15.25|
|Fremont – Employers of 25 or less||$15.00||$15.00|
|Half Moon Bay||$15.56||$15.56|
|Los Angeles City||$15.00||$15.00|
|Los Angeles County||$15.00||$15.00|
|Novato – Employers of 100+||$15.77||$15.77|
|Novato – Employers of 26-99||$15.53||$15.53|
|Novato – Employers of 25 or less||$15.00||$15.00|
|South San Francisco||$15.80||$15.80|
|Sonoma – Employers of 26+||$16.00||$16.00|
|Sonoma – Employers of 25 or less||$15.00||$15.00|
|West Hollywood – Hotel Employees||$17.64||$17.64|
|West Hollywood – Employers of 50+||$15.50||$15.50|
|West Hollywood – Employers of 49 or less||$15.00||$15.00|
A common issue for hourly employees arises when employers fail to keep track of minimum wage increases. While many employers will correct the issue once they become aware of it, others will unreasonably delay paying their employees the wages they owe. It is also important to note that it isn’t enough for your employer to adjust your pay rate; they have to pay you the money they would have paid you from the effective date of the minimum wage increase. If you are waiting for wages that have yet to be paid, a California wage and hour lawyer can help you resolve the situation.
Employers in California may not require employees to work “off-the-clock” without compensation. In other words, there is no such thing as “off-the-clock” work for hourly employees. Therefore, if you are performing work for your employer, you deserve to be paid.
Off-the-clock work may include:
- Pre-shift Duties
- Post-shift Work
- Administrative Duties and/or
- Work Performed During Meal or Rest Breaks
Work done off-the-clock is compensated at the employee’s regular hourly wage. If off-the-clock work is performed in excess of the maximum number of work hours, the employee is eligible for overtime pay.
Requiring you to work without compensation or to work more than 40 hours per week or more than 8 hours per day without paying overtime is a violation of state employment laws. If you find yourself in either of these situations and don’t know what to do, a California wage and hour attorney can provide you with valuable guidance and help you get the wages you earned.
The right to overtime pay for non-exempt employees is an essential protection that California wage and hour laws provide to employees. Employers may not avoid overtime requirements by pressuring or requiring employees to work “off-the-clock.”
California law mandates employers to pay non-exempt employees “time-and-a-half” overtime (one and a half the regular rate of pay) for any work in excess of:
- Eight (8) hours in a workday or
- Forty (40) hours in a workweek
Employers are also obligated to pay regular overtime for the first eight (8) hours of work that they do on the seventh day of a workweek.
California law also mandates employers to pay employees “double time” overtime (twice the regular rate of pay) for any work in excess of:
- Twelve (12) hours in a workday or
- Eight (8) hours on the seventh consecutive day worked of a workweek
MEAL AND REST BREAKS
California law requires employers to provide non-exempt employees with regularly scheduled meal breaks. More specifically, section 512 of the California Labor Code compels employers to provide a meal break of not less than 30 minutes to employees who work more than five hours in a workday and a second meal break of not less than 30 minutes to employees who work more than ten hours in a workday. Under certain circumstances, employees may choose to waive their first or second meal breaks.
While this sounds straightforward, meal break violations can sometimes be subtle. Under California law, the employer has met its obligation to provide a meal break if it meets the following criteria:
- The employee has been relieved of all duty.
- The employer has relinquished control over the employee’s activities.
- The employer has given the employee a reasonable opportunity for a meal break.
- The employer did not discourage the employee from taking their meal break.
Employers and employees can disagree as to whether all four of these criteria were met. If they were not, the employee may be entitled to be compensated during their meal break. If you have questions about whether your employer has violated the law, speak with a California wage and hour lawyer.
California law also requires employers to provide ten (10) minute rest breaks to non-exempt employees for each four (4) hours of work, or a substantial fraction thereof. During the rest breaks, employers may not require employees to perform any duties or to remain “on call.”
Remedies for Violations
California law provides specific remedies for employees who are denied their meal and rest breaks. With the appropriate legal action, employees might be able to recover:
- One hour of wages for each day an employer failed to provide a meal break and
- One hour of wages for each day an employer failed to provide a rest break
It is important to emphasize that employers may not willingly pay these penalties. Talk to a California wage and hour attorney to discuss the process for getting the compensation you are entitled to under the law.
Under California law, employers are required to reimburse employees for all necessary expenditures or losses incurred directly related to their job. The expenses available for reimbursement depend on the employee’s specific job. Some common reimbursement expenses may include:
- Travel Expenses
- Uniform Costs
- Phone Service
- Internet Service
- Training or Education Costs
- Conference and Registration Fees and/or
- Entertainment Costs
It is unlawful for an employer to retaliate against an employee for exercising their legal rights. An employer cannot take retaliatory action, including termination, against an employee for citing wage and hour violations or filing an unpaid expense lawsuit. Firing an employee for filing a labor violation claim may be considered “wrongful termination.”
VACATION PAY IN CALIFORNIA
Under California labor laws, employers are not required to provide employees with vacation time. However, if you do get vacation time, your employer cannot take vacation time away and has to pay for unused vacation time upon termination. Vacation time is treated as earned wages. Once an employee earns vacation time according to the employer’s accrual rate, the employee cannot lose the vacation time. In California, an employee’s vacation time cannot expire.
Employers may place restrictions on taking vacation time. These restrictions may include:
- A minimum amount of time to request time off
- Different time-off policies for managers and other employees
- Requiring pre-approval for taking days off
- A limit on the number of vacation days an employee can take in a row and/or
- Vacation “blackouts” or restricted days that are not available as time off
However, an employer cannot restrict vacation time based on unlawful discrimination. An employer’s vacation policy cannot discriminate based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or any other protected characteristic.
Requirements of Wage Statements
California requires employers to provide a paystub, i.e., “a detachable part of the check, draft or voucher paying the employee’s wage” or a separate written document if wages are paid by personal check or cash, that accurately states:
- Gross wages earned
- Total hours worked by the employee
- The number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis
- All deductions
- Net wages earned
- The inclusive dates of the period for which the employee is paid
- The name of the employee and only the last four digits of his or her social security number or an employee identification number
- The name and address of the legal entity that is the employer and, if the employer is a farm labor contractor, the name and address of the legal entity that secured the services of the employer and
- All applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate
Wage Statements Must Also Show Available Paid Sick Leave
In addition, California requires that employers include on the paystub or on a separate written document provided to the employee each pay period the amount of available paid sick leave (or paid time off an employer provides in lieu of sick leave).
If your paystubs are not in accord with the above-mentioned provisions of the California Labor Code, please contact our team, and we will provide effective counsel to help you obtain a favorable resolution of your potential claim.
Employees throughout California often earn incentive pay based on performance. Bonuses and commissions are additional wages that are not part of an employee’s regular hourly wages or salary. Bonuses and commissions are earned when the employee or salesperson has met certain criteria, such as sales or other performance or profitability metrics. Disputes often arise regarding the bonus or commission agreement, which may be based on an agreement or commission plan or implied based on a prior non-written agreement.
Commission agreements, in particular, must be in writing, and employees should request that their employers include the specific terms of their commission plan in a written document. Additionally, whether a bonus is discretionary (up to the employer) or non-discretionary (based on objective criteria) will affect the legal rules that apply.
Failure to pay incentive pay is a form of unpaid wages and is subject to the same requirements under the law as hourly wages.
TIPS AND GRATUITIES
Labor Code section 351 strictly prohibits employers and their agents (this includes members of management) from sharing in or keeping any portion of a gratuity left for or given to one or more employees by a patron. Furthermore, it is illegal for employers to make wage deductions from gratuities or to use gratuities as direct or indirect credits against an employee’s wages.
The law further provides that gratuities are the sole property of the employee or employees to whom they are given. “Gratuity” is defined in the Labor Code as a tip, gratuity, or money that has been paid or given to or left for an employee by a patron of a business over and above the actual amount due for services rendered or for goods, food, drink, articles sold or served to patrons.
MISCLASSIFICATION “EXEMPT VS. NON-EXEMPT”
Although nearly all California workers are covered by the overtime requirements of the California Labor Code, there are certain employees who are exempted by law. One of the most commonly disputed wage and hour issues has been the proper classification of employees as “exempt” or “non-exempt” from California law protections. To qualify for an exemption, an employee must meet several specific criteria. The burden of proving a proper exemption resides, at all times, with the employer.
The three most common exemptions under California and federal law are the executive, administrative, and professional exemptions, which have become known as the “white collar” exemptions. These exemptions apply to employees in management or highly skilled positions. Other recognized exemptions under California law include computer professionals and outside salespersons.
“Misclassification” occurs when an employer classifies an employee as exempt even though the employee does not meet all the criteria required to fall within an exemption. When an employee is misclassified in violation of California law, they are denied protections such as overtime pay and meal and rest breaks. These are often very serious violations. A misclassification can mean that an employee has been underpaid hundreds or thousands of dollars. If you believe that you have been misclassified as exempt by your employer, you should contact a California wage and hour attorney to discuss your case as soon as possible.
MISCLASSIFICATION “INDEPENDENT CONTRACTOR”
Many employers, knowingly or unknowingly, violate the California Labor Code by hiring workers as independent contractors rather than as employees. Independent contractors are not considered employees under wage and hour laws and do not require overtime payment.
Assembly Bill (AB) 5
AB 5 is a bill the Governor signed in September 2019 addressing employment status when a hiring entity claims the person it hired is an independent contractor. AB 5 requires the application of the “ABC test” to determine if workers in California are employees or independent contractors for purposes of the Labor Code, the Unemployment Insurance Code, and the Industrial Welfare Commission wage orders. The California Supreme Court adopted the ABC test in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903.
Under the ABC test, a worker is considered an employee and not an independent contractor unless the hiring entity satisfies all three of the following conditions:
- The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact
- The worker performs work that is outside the usual course of the hiring entity’s business and
- The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed
Contact A California Wage and Hour Attorney Today
Our attorneys are available to hear your story if you believe that your employer mistreated you regarding compensation or that they broke the law regarding hours worked and wages. Contact a California wage and hour lawyer at Macías Rodríguez Adams LLP for an evaluation of your case.