Wage & Hour Law
Common violations
overtime
meal and rest breaks
unpaid wages
Reporting Time
exempt vs non-exempt
eMPLOYEE VS INDEPENDENT
CONTRACTOR
Wage and Hour law covers issues surrounding pay. Employers often fail to properly apply California’s various wage and hour laws. This is a common problem faced by California Employees - particularly those who work by the hour.
Generally speaking, California Wage & Hour law and Federal law require California employers to pay employees for all time worked. Both Federal and California laws establish minimum wages California employers must pay their employees. They also set standards for when employees are entitled to meal and rest breaks and the penalties employers must pay when they fail to provide those breaks. There are also rules that lay out when employees are entitled to additional pay in the form of overtime and double time.
California law also lays out other pay related issues such as how to determine if an employee is exempt or non-exempt from standard wage and hour laws, when a employer must pay an employee for showing up even if they don’t work, and who is considered an employee vs an Independent Contractor.
Additionally, California Law protects employees from retaliation for exercising their rights, such as complaining that they don’t get paid overtime, do not get the timely and uninterrupted meal and rest breaks they are entitled to, or are not paid their final pay on time.
See EJP’s Wage & Hour Infographic below
Minimum Wage
As of January 1, 2024 the minimum wage in California is $16.00 per hour or $66,560 for salaried employees, regardless of the employer’s size.
If an employer fails to pay the minimum wage, the employee may recover the unpaid wages plus liquidated damages
Over-Time & Double-time
Non-exempt employees are entitled to overtime pay equivalent to 1.5x their regular rate of pay for:
All hours worked in excess of 8 hours per day
All hours worked in excess of 40 hours per week
1st 8 Hours worked on the 7th consecutive day of work
Non-exempt employees are entitled to pay equivalent to 2x their regular rate of pay for:
All hours worked in excess of 12 hours per day
All hours worked in excess of 8 hours on the 7th consecutive day of work
If an employer fails to pay overtime, the employee may be able to recover the unpaid wages as well as other penalties.
Unpaid Off The Clock Time
Employees are entitled to be paid for all time worked even if off the clock. This includes time spent performing work related tasks while off the clock, responded to text messages and phone calls when off the clock, and in some instances even time in which they are on call.
Meal & Rest Breaks
Non -exempt employees are entitled to breaks.
Rest breaks must be paid, be no less that 10 minutes for every 4 hours worked and must be uninterrupted
Meal breaks are unpaid, must be taken by any employee working six hours or more and must begin before the end of the 5th hour of work.
If the employer fails to provide legally compliant meal and rest breaks, the employee may be able to recover penalties in the amount of 1 hour’s pay for each missed meal or rest break going back up to 3 years.
Misclassification
California has strict rules regarding improperly classifying workers as independent contractors when they are by law employees. Effective January 1, 2020, California assumes all workers are employees and has adopted the “ABC” test to determine if a worker is properly classified as an independent contractor. The burden is on the employer to prove the worker is not an employee using the ABC test.
A. 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.
This means the worker is free to set the parameters of their work and not the hiring entity. The worker should be able to set prices, decide when to stop and start work, should not be responsible for the general maintenance of the building, selling products that are not theirs and should have the freedom to decline a job or customer.
B. The worker performs work that is outside the usual course of the hiring entity’s business.
This means the type of worker performed is different that the primary service or trade offered by the hiring business. For example, if the worker is a plumber who does work for a dress maker, the plumber is more likely to be an independent contractor. However, if a dress maker makes dresses for the customers of a dress shop, the worker is more likely to be considered an employee because the work they do is similar to or the same as the primary business of the hiring entity. This may also apply to barbers or cosmetologists working for a barbershop or salon, or a tax preparor working for a tax preparation company.
C. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
This means that the worker is more likely to be considered an independent contractor if the worker has their own business, separate and apart from the work performed for the hiring entity that offers similar work or services. The lack of business cards, a website, or other marketing materials outside of the work done for the hiring entity, may increase the likelihood that the worker is, in fact, an independent contractor.
If misclassified as an independent contractor, an employee may be entitled to significant damages. These damages may include recovery of the difference between actual wages paid and the minimum wage, overtime wages, meal and rest break premiums, sick leave, and any applicable penalties. Determining if you’ve been misclassified can be complicated. A Labor and Employment Attorney can help you sort through the rules and recover any damages to which you may be entitled.
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Laws protecting California Employees From
Wage & Hour Violations
There are several laws which protect California employees from wage & hour violations. Here are a few:
Federal Labor Standards Act (FLSA)
California Labor Code
California Wage Orders
For more information click the “learn more” button or CLICK HERE to schedule an intake call to discuss your potential claims
How Can The Employment Justice Project Help?
Listen
Educate you on your rights and possible claims
Educate your employer on your rights and their responsibilities under the law
Advocate on your behalf
Counsel and Advise
Address issues of retaliation and wrongful termination
Interview witnesses
Negotiate recovery of unpaid wages and penalties
Request your employee file
Review payroll records for violations
Review personnel file for evidence
Negotiate terms of severance or settlement
Negotiate a neutral reference or other favorable terms
Litigate, if appropriate and necessary
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