California employees have the legal right to compensation if their employers violate the state's wage and hour laws.
Common wage/hour law violations in California include:
- Failing to pay the minimum wage;
- Failing to pay overtime;
- Requiring "work off the clock";
- Failing to provide required meal and/or rest breaks;
- Misclassifying employees as exempt from wage/hour requirements; and
- Misclassifying employees as independent contractors.
If you suspect your employer is violating or has violated wage and hour laws, an experienced California employment lawyer can help. We can help you determine the nature of the violation and figure out the best next steps for you--which may include filing a wage/hour lawsuit in California court, or joining a California wage/hour class action.
Below, our California labor and employment attorneys address the following topics:
- 1. Do California Wage and Hour Laws Apply to Me?
- 2. Employees' Rights under California Wage/Hour Law
- 3. What are My Options if My Employer Violates Wage or Hour Laws?
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.
Generally speaking, California wage and hour laws apply to all non-exempt employees in the state of California.
This means that laws on overtime, meal breaks, etc., probably do not apply to you if you are either
- an independent contractor rather than an employee, or
- a so-called "exempt employee" under California labor law.
Because California wage and hour laws only cover employees, you will not be protected by these laws if you are an independent contractor.
Under California labor law, any person rendering service to an employer is presumed to be an employee--UNLESS s/he is an independent contractor.2
However, you are not necessarily an independent contractor just because your employer says you are. Some employers will try to classify employees erroneously as independent contractors in order to avoid paying payroll taxes, as well as to avoid having to comply with minimum wage and overtime laws.
The traditional definition of independent contractor is someone who
- renders a service under an agreement that says s/he will produce a specified result for specified pay, and
- maintains control over the means by which the result is accomplished.3
However, under California wage and hour law, additional factors are also used to determine whether someone is an independent contractor. These other factors include:
- Whether the worker is engaged in a distinct occupation or business;
- The kind of occupation, and whether it is typically done by employees or independent contractors;
- The skill required in the particular occupation;
- Whether the boss or the worker provides the tools and place of work;
- The length of time for which the work is to be performed;
- The method of payment (time-based or job-based);
- Whether the work is part of the regular business of the boss; and
- Whether the parties believe they are creating an employer-employee relationship.4
Example: Karen is starting a life-coaching business. She hires Nick, a recent college graduate with web-design skills, to help her build a website--something she does not know how to do.
The agreement between Karen and Nick is that he will finish her website in two weeks and she will pay him $2,000 when it is complete.
Nick ends up working upwards of 80 hours a week to finish the website. But Karen does not owe him overtime compensation because the facts strongly suggest that Nick is an independent contractor, not an employee of Karen.
California labor law specifically provides that overtime rules do not apply to certain employees, known as "exempt employees."5
The most important group of exempt employees under California hour and wage law is executive, administrative and professional employees.6 In order to be considered part of this category of exempt employee, an employee must:
- Spend more than half of his/her work time doing intellectual, managerial or creative work;7
- Regularly exercise discretion and independent judgment in performing those duties; and
- Earn a monthly salary equivalent to at least twice the state minimum wage for full-time employment (that is, employment for 40 hours/week).8
Other groups of employees exempt from wage/hour overtime requirements include:
- Employees in the computer software field who are highly skilled and engage primarily in intellectual or creative work requiring the exercise of discretion and independent judgment;9
- Licensed physicians or surgeons primarily engaged in work that requires medical licensure;10
- Teachers at private elementary or secondary schools who earn at least the lowest salary offered to licensed teachers by any public school district in California, or at least 70% of the lowest salary offered to licensed teachers in the public school district where the teacher works (whichever is greater).11 and
- Employees who earn more than half of their compensation from commissions and whose total earnings exceed one and a half times the minimum wage.12
It is all too common for California employers to try to misclassify non-exempt employees as exempt in order to avoid paying overtime or providing breaks. It is important for employees to know that they are not exempt from wage/hour laws requiring overtime payment just because:
- Their employer has made them sign an agreement stating that they are exempt; or
- They are paid a salary instead of an hourly wage.13
With a few special exceptions, all California employees--including "exempt employees," but excluding independent contractors--must be paid the minimum wage set out in the state's wage and hour laws.14
The California minimum wage as of June 2017 was
- ten dollars ($10) per hour for employers with twenty-five (25) or fewer employees, and
- ten dollars and fifty cents ($10.50) per hour for employers with twenty-six (26) or more employees.
That minimum wage is scheduled to rise annually until it reaches fifteen dollars ($15) per hour for all employers in 2022.15
Of course, that is only the state minimum wage. Many California cities and counties have a higher minimum wage.
The right to overtime pay is another key right that California wage/hour law provides to employees. California overtime laws only apply to non-exempt employees. California employers may not get around overtime requirements by requiring or pressuring employees to "work off the clock."
Time and a half overtime
Employers must pay non-exempt employees "time and a half" overtime (that is, one and a half times their regular rate of pay) for any work in excess of
- eight (8) hours in one workday, or
- forty (40) hours in one workweek.16
Employees are also entitled to "time and a half" overtime for the first eight (8) hours of work that they do on the seventh day of a workweek.17
Double time overtime
In addition, California wage and hour law requires employers to pay employees "double time" overtime (that is, twice their regular rate of pay) for
- any work in excess of twelve (12) hours in one workday, or
- any work in excess of eight (8) hours on the seventh day of a workweek.18
Example: Will works in a fulfillment center for an online retailer. His normal schedule is eight hours per day, five days a week.
But the Christmas season is coming, so there is plenty of extra work to be done. In the week before Christmas, Will works 10 hours per day on Monday through Thursday. For the last two hours of work on each of those days, he is entitled to time and a half overtime pay.
On Friday, Will works for 14 hours. Because he has already worked forty hours in a week, he is entitled to time and a half overtime pay for the first 12 of those hours. For the last two hours, he is entitled to double time pay (as is required for work over 12 hours in a single workday).
In some cases, employers and employees at a workplace may agree that the employees can work up to ten (10) hours in a workday, within a 40-hour workweek, without overtime pay. This is known as an "alternative workweek schedule" and must be approved by at least two-thirds (2/3) of affected workers.19
California wage and hour law requires employers to provide non-exempt employees with regularly scheduled
- meal breaks, and
- rest breaks.
Most non-exempt California employees who work more than five (5) hours in a workday must be given a meal break of at least thirty (30) minutes. However, if the employee will work no more than six (6) hours in the day, s/he may agree to waive the meal break.20
In addition, employees who will work more than ten (10) hours in a day must receive a second thirty (30) minute meal break--which the employee may waive if s/he did not waive the first meal break and will work no more than twelve (12) hours in the day.21
Example: Rosa works as a grocery store checkout clerk. Her normal shifts are nine hours long. So the store is required to provide her with one half-hour meal break per shift.
One week the store is short-staffed, and Rosa works eleven-hour shifts instead. On these shifts, the store must provide her with at least two half-hour meal breaks--unless she agrees to waive one of them.
There are exceptions to the meal break requirements for certain categories of employees whose collective bargaining agreements provide for meal breaks on a different schedule--including unionized employees who work in construction occupations, as commercial drivers, as security officers, for electrical or gas companies, or in the motion picture industry.22
California wage and hour laws also require employers to provide "rest periods"/rest breaks to non-exempt employees.
Non-exempt employees are entitled to ten (10) minutes of rest period for each four (4) hours, or substantial fraction thereof, that they work. However, employees are not entitled to rest breaks for work shifts that are less than three-and-a-half (3 1/2) hours long.23
During these rest periods, the employer may not require the employee to perform any duties or to remain "on call."24
If your employer violates California wage and hour laws by failing to pay you the minimum wage, failing to pay required overtime or failing to provide meal and rest breaks, then you have the right to sue under the California Labor Code.
California wage/hour lawsuits over failure to pay minimum wage or overtime can be brought to collect the following amounts from the employer:
- The unpaid balance of the minimum wage or overtime compensation that the employee did not receive;
- Interest on those amounts; and
- Reasonable attorney's fees and litigation costs.25
Employees whose employers do not provide meal or rest breaks as required under wage/hour law in California are entitled to receive one hour's pay at their regular rate for each workday on which a required break was not provided to them.26
Unlike plaintiffs receiving damages in wrongful termination suits, employees who bring wage and hour lawsuits against their employers in California cannot collect damages for emotional distress.
It is common for employees to assert their rights under California wage/hour law by joining in a "class action lawsuit."
In a wage/hour class action lawsuit, a large number of employees whose rights under the California Labor Code have been violated in a similar way will join together to sue their employer with the help of a California employment attorney with class action experience.
One of the main benefits of a wage and hour class action lawsuit is that it makes it easier for employees who could not afford to retain a skilled California employment lawyer on their own to have their day in court.
Another is that large employers often find wage/hour class actions more threatening than a wage and hour lawsuit by an individual employee. For that reason, defendant employers may be more likely to agree to a settlement with a class of wage/hour plaintiffs--which saves you, as a plaintiff, the time and hassle of taking a case to trial.
Call us for help....
For questions about California wage and hour laws or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
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 98.6 LC -- Discharge or discrimination, retaliation, or adverse action against employee or applicant for conduct delineated in this chapter or because employee or applicant has filed complaint or claim, instituted or caused to be instituted any proceeding under or relating to his or her rights or testified relating to the same on behalf of that person or another [whistleblower protection for reporting wage/hour or labor law violations].
- Labor Code 3357 LC -- Employee presumption [for purposes of California labor law]. ("Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.")
- Labor Code 3353 LC -- Independent contractor.("“Independent contractor” means any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.")
- G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350–51. ("However, the courts have long recognized that the “control” test [for whether someone is an employee or an independent contractor], applied rigidly and in isolation, is often of little use in evaluating the infinite variety of service arrangements. While conceding that the right to control work details is the “most important” or “most significant” consideration, the authorities also endorse several “secondary” indicia of the nature of a service relationship. Thus, we have noted that “[s]trong evidence in support of an employment relationship is the right to discharge at will, without cause. [Citations.]” *351 ( Tieberg, supra, 2 Cal.3d at p. 949, quoting Empire Star Mines, supra, 28 Cal.2d at p. 43.) Additional factors have been derived principally from the Restatement Second of Agency. These include (a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee. ( Tieberg, supra, at p. 949; Empire Star Mines, supra, 28 Cal.2d at pp. 43-44; see Rest.2d Agency, § 220.) (4a) “Generally, ... the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.” (Germann, supra, 123 Cal.App.3d at p. 783.)")
- Labor Code 515 LC -- Exemptions [from overtime and other wage/hour laws]. ("(a) The Industrial Welfare Commission may establish exemptions from the requirement that an overtime rate of compensation be paid pursuant to Sections 510 and 511 for executive, administrative, and professional employees, if the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. The commission shall conduct a review of the duties that meet the test of the exemption. The commission may, based upon this review, convene a public hearing to adopt or modify regulations at that hearing pertaining to duties that meet the test of the exemption without convening wage boards. Any hearing conducted pursuant to this subdivision shall be concluded not later than July 1, 2000.")
- Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 562. ("Under the wage orders, an employee is “primarily” engaged in intellectual, managerial, or creative work if more than half of his or her work time is devoted to such duties. (Cal. Code Regs., tit. 8, § 11110, subd. 2(K).)")
- Labor Code 515 LC -- Exemptions [from overtime and other wage/hour laws], endnote 5 above.
- Labor Code 515.5 LC -- Computer software employees; exemption from § 510 [overtime law].
- Labor Code 515.6 LC -- Licensed physicians and surgeons; exemption from § 510 [overtime law].
- Labor Code 515.8 LC -- Teachers at private elementary or secondary academic institutions; Section 510 not applicable [overtime law not applicable]; exemptions.
- 8 California Code of Regulations ("CCR") § 11040(3)(D) ("Wage Order 4") [wage/hour exemption for employees whose compensation is primarily from commissions].
- Nordquist v. McGraw-Hill Broadcasting Co., endnote 7 above, at 562. ("If an employee is entitled to overtime pay under California law, the employer may not abrogate its obligation to pay such compensation by written agreement. (Lab. Code, § 219.) Further, absent an explicit wage agreement, a fixed salary does not serve to compensate an employee for statutory overtime worked.")
- Labor Code 1197 LC -- Payment of lower wage than minimum wage [key California wage and hour law]. ("The minimum wage for employees fixed by the commission or by any applicable state or local law, is the minimum wage to be paid to employees, and the payment of a lower wage than the minimum so fixed is unlawful. This section does not change the applicability of local minimum wage laws to any entity.")
- Labor Code 1182.12 LC -- Minimum wage [key California wage and hour law]; scheduled increases; adjusted minimum wage; temporary suspension of increases. ("(a) Notwithstanding any other provision of this part, on and after July 1, 2014, the minimum wage for all industries shall be not less than nine dollars ($9) per hour, and on and after January 1, 2016, the minimum wage for all industries shall be not less than ten dollars ($10) per hour. (b) Notwithstanding subdivision (a), the minimum wage for all industries shall not be less than the amounts set forth in this subdivision, except when the scheduled increases in paragraphs (1) and (2) are temporarily suspended under subdivision (d). (1) For any employer who employs 26 or more employees, the minimum wage shall be as follows: (A) From January 1, 2017, to December 31, 2017, inclusive,-ten dollars and fifty cents ($10.50) per hour. (B) From January 1, 2018, to December 31, 2018, inclusive,-eleven dollars ($11) per hour. (C) From January 1, 2019, to December 31, 2019, inclusive,-twelve dollars ($12) per hour. (D) From January 1, 2020, to December 31, 2020, inclusive,-thirteen dollars ($13) per hour. (E) From January 1, 2021, to December 31, 2021, inclusive,-fourteen dollars ($14) per hour. (F) From January 1, 2022, and until adjusted by subdivision (c)-fifteen dollars ($15) per hour. (2) For any employer who employs 25 or fewer employees, the minimum wage shall be as follows: (A) From January 1, 2018, to December 31, 2018, inclusive,-ten dollars and fifty cents ($10.50) per hour. (B) From January 1, 2019, to December 31, 2019, inclusive,-eleven dollars ($11) per hour. (C) From January 1, 2020, to December 31, 2020, inclusive,-twelve dollars ($12) per hour. (D) From January 1, 2021, to December 31, 2021, inclusive,-thirteen dollars ($13) per hour. (E) From January 1, 2022, to December 31, 2022, inclusive,-fourteen dollars ($14) per hour. (F) From January 1, 2023, and until adjusted by subdivision (c)-fifteen dollars ($15) per hour. (3) For purposes of this subdivision, “employer” means any person who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. For purposes of this subdivision, “employer” includes the state, political subdivisions of the state, and municipalities.")
- Labor Code 510 LC -- Day's work; overtime; commuting time [key California wage & hour law]. ("(a) Eight hours of labor constitutes a day's work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee. Nothing in this section requires an employer to combine more than one rate of overtime compensation in order to calculate the amount to be paid to an employee for any hour of overtime work. The requirements of this section do not apply to the payment of overtime compensation to an employee working pursuant to any of the following: (1) An alternative workweek schedule adopted pursuant to Section 511. (2) An alternative workweek schedule adopted pursuant to a collective bargaining agreement pursuant to Section 514. (3) An alternative workweek schedule to which this chapter is inapplicable pursuant to Section 554.")
- Labor Code 511 LC -- Alternative workweek schedules [exception to typical overtime rules]. ("(a) Upon the proposal of an employer, the employees of an employer may adopt a regularly scheduled alternative workweek that authorizes work by the affected employees for no longer than 10 hours per day within a 40-hour workweek without the payment to the affected employees of an overtime rate of compensation pursuant to this section. A proposal to adopt an alternative workweek schedule shall be deemed adopted only if it receives approval in a secret ballot election by at least two-thirds of affected employees in a readily identifiable work unit. The regularly scheduled alternative workweek proposed by an employer for adoption by employees may be a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. Notwithstanding subdivision (c) of Section 500, the menu of work schedule options may include a regular schedule of eight-hour days that are compensated in accordance with subdivision (a) of Section 510. Employees who adopt a menu of work schedule options may, with employer consent, move from one schedule option to another on a weekly basis.")
- Labor Code 512 LC -- Meal periods; requirements; order permitting meal period after six hours of work; exceptions; remedies under collective bargaining agreement [California wage/hour law]. ("(a) An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.")
- Labor Code 512 LC -- Meal periods; requirements; order permitting meal period after six hours of work; exceptions; remedies under collective bargaining agreement [California wage/hour law]. ("(c) Subdivision (a) does not apply to an employee in the wholesale baking industry who is subject to an Industrial Welfare Commission wage order and who is covered by a valid collective bargaining agreement that provides for a 35-hour workweek consisting of five 7-hour days, payment of one and one-half times the regular rate of pay for time worked in excess of seven hours per day, and a rest period of not less than 10 minutes every two hours.
(d) If an employee in the motion picture industry or the broadcasting industry, as those industries are defined in Industrial Welfare Commission Wage Order Numbers 11 and 12, is covered by a valid collective bargaining agreement that provides for meal periods and includes a monetary remedy if the employee does not receive a meal period required by the agreement, then the terms, conditions, and remedies of the agreement pertaining to meal periods apply in lieu of the applicable provisions pertaining to meal periods of subdivision (a) of this section, Section 226.7, and Industrial Welfare Commission Wage Order Numbers 11 and 12. (e) Subdivisions (a) and (b) do not apply to an employee specified in subdivision (f) if both of the following conditions are satisfied: (1) The employee is covered by a valid collective bargaining agreement. (2) The valid collective bargaining agreement expressly provides for the wages, hours of work, and working conditions of employees, and expressly provides for meal periods for those employees, final and binding arbitration of disputes concerning application of its meal period provisions, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate. (f) Subdivision (e) applies to each of the following employees: (1) An employee employed in a construction occupation. (2) An employee employed as a commercial driver. (3) An employee employed in the security services industry as a security officer who is registered pursuant to Chapter 11.5 (commencing with Section 7580) of Division 3 of the Business and Professions Code, and who is employed by a private patrol operator registered pursuant to that chapter. (4) An employee employed by an electrical corporation, a gas corporation, or a local publicly owned electric utility.")
- 8 C.C.R. 11040(12) ("Wage Order 4"). ("(A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided.")
- Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 260. ("What we conclude is that state law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.")
- Labor Code 1194 LC -- Action to recover minimum wage, overtime compensation [wage/hour lawsuits], interest, attorney's fees, and costs by employee. ("(a) Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit.")
- Labor Code 226.7 LC -- “Recovery period” defined; mandated meal, rest, or recovery periods; requirement to work prohibited; application of section [important California wage/hour law]. ("(c) If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each workday that the meal or rest or recovery period is not provided.")