In California, an unpaid wage claim is a legal action brought by a worker to recover wages that an employer owes but has failed to pay. This action can be brought as
- a wage claim with the California Division of Labor Standards Enforcement,
- a wage claim with a federal agency, or
- a wage and hour lawsuit in court.
Below, our California labor and employment lawyers discuss the following frequently asked questions about lawsuits for unpaid wages for California employees:
- 1. Does my employer owe me money for unpaid wages?
- 2. Which California employees are protected by wage and hour laws?
- 3. What can you do if your employer doesn’t pay you in California?
- 4. How long do I have to file an unpaid wages lawsuit in California?
- 5. How much money will I get for an unpaid wages lawsuit in California?
- 6. Can my boss fire me for filing an unpaid wages lawsuit?
If you have further questions about wage violations after reading this article, we invite you to contact us at Shouse Law Group.
1. Does my employer owe me money for unpaid wages?
California wage and hour law provides for a minimum wage and mandatory overtime for work over a certain number of hours for non-exempt employees in California. An employer who does not pay their employees for work performed may owe the employee money for unpaid wages.1
It is against the law for California employers to pay employees less than the minimum wage. If your employer violates California’s minimum wage laws, you can recover the money owed in
a wage/hour lawsuit or
a wage and hour class action lawsuit.2
In 2023, the statewide minimum wage in California is $15.50 per hour. However, many cities and counties in California have a minimum wage that is higher than the state minimum. If you work in a city or county with a higher minimum wage, your employer must pay the higher local minimum wage.3
The California minimum wage will increase every year between 2017 and 2023, based on the following schedule:4
|Year||California Minimum Wage for Employers with 26 or more employees||California Minimum Wage for Employers with 25 or fewer employees|
Under California overtime law, employers are required to pay non-exempt employees overtime pay for work over the maximum number of hours of work.5
Non-exempt employees who do not have an alternative workweek schedule are entitled to overtime pay if they work:
- more than eight (8) hours in a single workday;
- more than forty (40) hours in a single workweek; or
- more than six (6) days in a single workweek.6
Employees are entitled to minimum overtime pay at one and one-half (1 ½) times their regular hourly rate of pay.
In addition, work in excess of twelve (12) hours in a single workday, or in excess of eight (8) hours on the seventh day of a workweek is paid at double the regular hourly rate of pay.7
Even if the employer does not require overtime work, employers may owe employees overtime pay as long as the employer permitted the employee to perform the extra work.8
Meal and Rest Breaks
Non-exempt employees are entitled to meal breaks and rest breaks. Under California wage and hour law, employees must receive
a thirty (30) minute meal break if
they work more than five (5) hours in a day.
Employees who work more than ten (10) hours in a day are entitled to a second 30-minute meal period.9
Under California labor law, rest breaks are required for non-exempt employees who work three and a half (3 ½) or more total hours in a day. Employees are entitled to a ten (10) minutes of rest period for each four (4) hours, or substantial fraction thereof, worked in a day.10
If an employer does not allow employees to take meal breaks or rest breaks, the employer will owe the employee one hour’s wages for each break the employee was denied.11
Employers in the state of California may not require employees to work “off the clock” without compensation.12
Off-the-clock work may include:
- Pre-shift duties
- Post-shift work
- Administrative duties
- Work performed during a meal break or rest break
- being on-call or standby (learn more about on-call pay)
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.
Example: Jeremy applies for a job at a recording studio because he thinks it is a great way to break into the music industry. During the job interview, Jeremy tells the employer that he will work 50 hours a week for $100.00 to show the employer what a great worker Jeremy is. Jeremy gets the job.
After a few months of working, Jeremy feels like his boss is taking advantage of him and making him run personal errands all day. Jeremy tells his boss that he wants to be paid more since he is working more than the agreed-upon amount of time. Jeremy’s boss tells Jeremy that since he agreed to work for $100.00 a week, he would only be paid $100.000 a week.
Even if Jeremy agreed to work for $100.00 for a 50-hour workweek with a written contract, Jeremy is still protected by California wage and hour laws. Jeremy cannot waive California labor laws by agreement with the employer. And it does not matter what Jeremy’s immigration status is.
If Jeremy files a successful lawsuit against his employer, Jeremy may be owed unpaid wages at the California minimum wage, including damages for unpaid overtime, missed rest breaks, meal break violations, and reimbursements for certain work-related expenses. Otherwise, the employer is committing wage theft.
Also see our related articles on state laws for sick leave and vacation pay.
2. Which California employees are protected by wage and hour laws?
Employees are generally classified as exempt or non-exempt to California wage and hour laws. Non-exempt workers include
“persons employed in professional, technical, clerical, mechanical, and similar occupations whether paid on a time, piece rate, commission, or other basis.”13
Exempt employees may not be subject to wage and hour laws, including overtime and lunch break laws. Exempt employees may include:
- White-collar workers
- Independent contractors
- Employees earning commissions
“White-collar workers” may include persons employed in administrative, managerial, executive, or professional capacities.14
In order to be considered an exempt white-collar worker under California employment law, employees must meet the following requirements:
- Spend more than one-half of their work time performing intellectual, managerial or creative work;
- Customarily and regularly exercise discretion and independent judgment in performing those job duties; and
- Earn a monthly salary equivalent to at least twice the California minimum wage for full-time employment.15
Independent contractors in California may also be exempt from California wage and hour laws. In general, an independent contractor in California labor law is someone who performs services for another, under the following requirements:
- The person performing the service is promised a specific payment for a specific result; and
- The person performing services retains control over how the task was performed.16
However, even if a worker is hired as an independent contractor, the worker will be considered an employee if the parties act like they are in an employer-employee relationship. As an employee, the worker would be protected by California wage/hour, lunch break, and labor laws.17
3. What can you do if your employer doesn’t pay you in California?
When an employer fails to follow California wage and hour laws, you may be able to recover the unpaid wages through filing a wage claim with the labor commissioner or filing a lawsuit against your employer.18
Lawsuits against employers for California labor law violations may include:
- Failure to pay overtime compensation (overtime violations)
- Requiring an employee to work off the clock
- Failure to provide required meal breaks
- Failure to provide required rest breaks
- Misclassifying employees as “exempt employees”
- Misclassifying employees as “independent contractors”
- Failure to pay the California minimum wage
- Failure to pay the local city or county minimum wage
- Late payment of wages
- Failure to pay agreed-upon hazard pay
In many cases, an employer may have violated California labor laws against multiple employees. Successful wage and hour class action lawsuits often involve unpaid wages for overtime or missed meal breaks or rest periods.
Sometimes it may be advisable to issue a demand for unpaid wages before taking legal action. See our sample demand letter for unpaid wages in California.
4. How long do I have to file an unpaid wages lawsuit in California?
In most cases, the statute of limitations for California wage and hour lawsuits is three (3) years from the date of the most recent violation.19
5. How much money will I get for an unpaid wages lawsuit in California?
The damages available if you win a wage claim in California depend on the type of labor code violation.
In a lawsuit for unpaid wages related to overtime or wages under the minimum wage, you may be able to collect the amount of back wages. In addition, you may be able to recover
- interest on the outstanding wages and
- reasonable attorney’s fees and court costs.20
If your employer failed to provide mandatory meal breaks or rest breaks, you may be eligible for one hour’s wages for each break you did not receive.21
If your employer’s violation of California labor laws was not due to a good-faith error, you may be eligible for double damages. Liquidated damages include an amount equal to the unpaid wages plus interest.22
6. Can my boss fire me for filing an unpaid wages lawsuit?
California workers cannot be retaliated against for exercising their rights under California wage and hour laws.23
An employer cannot take retaliatory action, including termination, against an employee for citing wage and hour violations or filing an unpaid wages lawsuit. Firing an employee for filing an unpaid wage claim is considered “wrongful termination”.
If an employer retaliates against an employee for bringing a wage/hour lawsuit, the employee may have an additional cause of action against the employer.
Call us for help…
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Labor Code 1194
- Labor Code 1197 LC — Payment of lower wage than minimum wage. See also the Fair Labor Standards Act (FLSA).
- See California Department of Industrial Relations, Minimum Wage.
- Labor Code 1182.12 LC — Minimum wage; scheduled increases; adjusted minimum wage; temporary suspension of increases; note that California law is different from federal law – the federal minimum wage throughout the United States is $7.25 an hour. John Myers, California’s minimum wage will rise to $15.50, triggered by soaring inflation, Los Angeles Times (May 12, 2022).
- Labor Code 510 LC — Day’s work; overtime; commuting time.
- Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 584–85.
- California Labor Code 512
- 8 California Code of Regulations (“C.C.R”) 11040.
- 8 C.C.R 11040.
- Adoma v. University of Phoenix, Inc. (E.D. Cal. 2010) 270 F.R.D. 543, 548.
- 8 C.C.R 11040
- Labor Code 515
- Labor Code 3353 LC — Independent contractor.
- See Yellow Cab Cooperative, Inc. v. Workers’ Comp. Appeals Bd. (1991) 226 Cal.App.3d 1288, 1297.
- Murphy v. Kenneth Cole Productions, Inc.(2007) 40 Cal.4th 1094, 1117. (“An employee need not administratively exhaust his claim before filing a civil action.”); also see California Labor Commissioner’s Office (DLSE); depending on the case, employees could file suit in small claims court or superior court.
- Code of Civil Procedure 338 CCP — Statutes of limitations for wage/hour lawsuits. (“Within three years: (a) An action upon a liability created by statute, other than a penalty or forfeiture.”)
- Labor Code 1194
- 8 C.C.R 11040.
- Labor Code 1194.2 — Liquidated damages
- Labor Code 98.6. Shouse Law Group