7 Dumb Ways Employers Violate Wage & Hour Laws in California
Many employers make mistakes in paying their workers or assigning them tasks. This article takes a look at some of the most common violations.
California law provides protections for workers’ wages and hours. Many employers, however, violate those protections. In some cases, the violations are unintentional; the employer might simply be unaware of their legal duties. In other cases, employers intentionally violate the law to avoid paying their employees more money.
Regardless of the intent, violations of California’s wage and hour laws can have severe consequences. This article takes a closer look at seven of the most common violations of wage laws in California.
Violation 1
They Misclassify Employees as Independent Contractors☍ Click to Copy a Link to This Chapter
Independent contractors are workers who are in business for themselves. They’re generally free to work on multiple projects at the same time, and take jobs on a freelance basis. In many cases, they can choose when, where, and how they perform the work.1
Employees, on the other hand, are workers that are employed by a business, person, or government entity.2 In an employee-employer relationship, the employer generally exercises a high degree of control over the wages, hours, or working conditions of the employee.3
The distinction between independent contractors and employees is an important one. Employees have many legal rights that independent contractors do not. Those can include the right to overtime pay,4 the right to meal breaks,5 and the right to a minimum wage.6
The California Test
In California, the critical question is whether an “employment relationship” has been created. An employment relationship exists when an entity hires someone to do something for their benefit (or the benefit of a third party).7 The hiring entity can be a person, a business, an organization, or a governmental body.8
The legal definition of “employment relationship” is somewhat vague, and often depends on the worker’s specific occupation. In many cases, the default presumption is that a worker is an “employee” if they provide labor or services for someone else in exchange for pay. The burden is often on the hiring entity to establish that the worker is not an employee.9
A hiring entity can show that a worker is an independent contractor (and thus not an employee) only if all three of the following requirements are met:
- Autonomy. The worker must be free from the control and direction of the hiring entity with regard to how the work is performed.10
- Business Dissimilarity. The worker’s labor or services must fall outside the usual course of the hiring entity’s business.11
- Custom of the Worker. The worker must be customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.12
This test is commonly called the “ABC” test. Although the ABC test is the most common under California law, it isn’t always the correct test to determine a workers’ status as employee or independent contractor. The ABC test controls when applying three sets of rules:
- Wage Orders. The State of California uses a series of wage orders to define many conditions of employment. The wage orders, which are available here (Opens in new window), have the force of law. They address workplace rules, such as: the right to overtime pay, the right to meal and rest breaks, and certain recordkeeping requirements.18
- Unemployment Insurance Code. California’s Unemployment Insurance Code governs, as the name suggests, unemployment insurance. It also covers: disability insurance, certain tax withholdings, the CalWORKs program, and other workforce development programs.19
For most workers, if the legal rights established by either set of rules above are at issue, the ABC test will apply to determine whether the worker is an employee or an independent contractor. But, as with most legal rules, there are exceptions.
If an exception to the ABC test applies, the next most common applicable test is called the “manner and means” test. The manner and means test is also the default test used when a court finds, for some reason, that the ABC test cannot be applied in a particular case.20
Under the manner and means test, an employment relationship will be found when the business has a right to control the manner and means of accomplishing the result desired.21
The manner and means test is the most commonly used for the purposes of:
- California’s wage and hour laws when the ABC test doesn’t apply,22
- Unemployment insurance benefits when the ABC test doesn’t apply,23
- Workers’ compensation insurance,24
- State disability insurance,25 and
- State income tax withholding.26
Because of their widespread use, it is important for California businesses and workers alike to fully understand these tests.
The Amount of Control Is Key
The primary question under the manner and means test is the degree to which the hiring business can control how a worker does their job. If the business has a right to exercise a high degree of control, the worker will be considered an employee.27 If, on the other hand, the business only has a right to control the result of the work (and not the means by which it is accomplished), an independent contractor relationship is established.28
Put simply, the more control a business exercises over the way a worker does their job, the more likely it is that the worker will be found to be an employee.29 If, for example, the business can control the details involved in how a task is performed, rather than just the end result of the task, they will likely be considered an employer.30
Importantly, businesses do not have to actually exercise control over the way a worker performs the work to be considered an employer. The business only needs to have the right to do so under the parties’ agreement.31 The business’s right of control can be expressly stated in a written contract, or it can be implied by the nature of the job.32
Secondary Factors to Consider
It is often difficult to know who has the right to control the manner and means of a particular job.33 Courts will therefore consider a series of secondary factors to make a final determination:34
- Is the worker supervised? Independent contractors are free to do their work however they want, according to their own methods. If a person is required to follow a business’s procedures, is supervised, or is given instructions on how to work, this suggests the worker is an employee.35
- Can the worker be fired at any time? If the business can fire a worker at will, it suggests the worker is an employee. But if a person is an independent contractor, they typically cannot be terminated unless the terms of the contract are fulfilled or breached.36
- Is the work a part of the business’s normal trade? Work that is part of a business’s regular line of work is normally performed by employees. A shoe salesperson in a shoe store, for example, would probably be an employee because they assist with the work normally performed by the business.37
- Does the worker operate a separate business? If a worker markets himself or herself as able to provide services for more than one company, it is evidence that the person has a separately-established business. Independent contractors can normally accept work from more than one business, while employees are usually more limited.38
- Does the worker make business decisions? A person who can make their own business decisions, particularly those that involve a risk of losing money or an opportunity for profit, is usually an independent contractor. Employees generally do not purchase equipment, rent an office, invest in advertising, or purchase insurance coverage with their own money.39
- Does the worker provide their own equipment? Employees are usually not required to provide their own equipment, tools, supplies, or the location to perform their work. Independent contractors, on the other hand, often invest in the resources they need to do the job. If a business furnishes the tools for the job, the worker is more likely to be considered an employee.40
- How long is the work expected to last? Employees are usually hired for an indefinite period. Independent contractors, on the other hand, are often retained on a per-job basis for a fixed period of time.41
- How is the worker paid? Employees are often paid a fixed salary or an hourly wage. Independent contractors, on the other hand, are usually paid a fixed rate per project or per task performed. Additionally, independent contractors generally submit invoices to businesses after a project is completed.42
- Is the worker a skilled laborer? Workers who provide unskilled or semi-skilled labor are more likely to be considered employees entitled to full protection of California’s labor laws.43
- Was the worker trained by the business? Independent contractors generally perform their job independently and do not require training. If the business provides training to workers performing the same job, that can be evidence that a worker is an employee.
- How did the parties characterize their relationship? Courts will sometimes, but not always, consider how the parties described their relationship. If the worker or business believed they were creating an employee-employer relationship, courts may be more likely to find that an employment relationship exists.44
Courts do not apply a strict formula when looking at these factors. Instead, they view the relationship as a whole and approach the factors flexibly, giving them varying levels of importance depending on the facts of the case.45
If, after using these factors, a court is still unsure about whether a worker is an employee or an independent contractor, they will usually presume the person is an employee.46 Given this, it can be a good idea for businesses to err on the side of caution and treat their workers as employees if there is any doubt about their status.
A Written Agreement Is NOT Determinative
Importantly, the label a business places on a worker does not determine whether the worker is an employee or an independent contractor for legal purposes.47 If, for example, the parties have a written agreement stating that the worker is an independent contractor but the parties act like an employer and employee, courts will ignore the agreement.48
Similarly, the fact that a worker is issued a 1099 form for federal tax purposes, rather than a W-2 form, is not determinative of whether a person is an independent contractor. The legal test used to determine whether an employment relationship exists under California law is slightly different than it is for federal tax purposes. Also, some businesses mistakenly classify their workers as independent contractors to avoid the costs associated with employment.
This means that many workers who call themselves “independent contractors” are actually employees. When a worker has been misclassified, they can be entitled to recover all the benefits they would have received if they had been properly classified as an employee.
Example 
John workers as a cashier at a grocery store. His boss assigns him specific tasks and requires him to show up during specific hours. The grocery store requires John to sign an agreement stating that he is an independent contractor.
Because John meets the legal test of being an employee, and not an independent contractor, the agreement he signed is unlawful and courts will ignore it. Instead, courts will look at the conduct of the worker and the business to determine who really has control over the way the job is performed.
Put simply, the law requires workers to be treated as employees if they meet the legal definition of that role, regardless of whether the business has called them something else. A job title itself is not dispositive of the whether a person is an employee or an independent contractor.49
Employment Can Exist Even When Control Is Absent
In some circumstances, a business may lack control over how work is performed but a court will nevertheless find that an employer-employee relationship exists.50 This can happen when three factors are met:
- The business retains pervasive control over the operation as a whole,
- The worker’s job responsibilities are an integral part of the operation, and
- The nature of the work makes detailed control unnecessary.51
Cab drivers, for example, can sometimes be deemed employees under this rule, since the drivers perform an indispensable service for the a cab company and all three factors are met.52
Presumption for Licensed Contractors
Workers who perform services that require a contractor’s license issued by the State of California are presumed to be employees.53 Likewise, people who work for a person who is required to obtain a contractors license are presumed to be employees.54
This presumption shifts the burden of proof to the business receiving services. This means that, in court, business wishing to classify their workers as independent contractors will bear the initial responsibility of showing that the workers were actually independent contractors under the normal test and factors stated above.55
Businesses are also responsible for proving that the worker’s status as an independent contractor was not a pretext to avoid classifying the worker as an employee.56
Workers’ Compensation Cases
California employees who have suffered a work-related injury are sometimes entitled to pay or benefits under California’s workers’ compensation laws.57 Workers’ compensation claims in California are administered by the Division of Workers’ Compensation (the DWC).58
The test used to determine whether an employment relationship exists in workers’ compensation cases is largely the same as the test used in other California cases.59 But the California Supreme Court has noted that the workers’ compensation law should be interpreted liberally in favor of awarding compensation.60 As such, some courts will consider other factors when reviewing cases.61
Specifically, courts in workers’ compensation cases may consider:
- The purpose of the workers’ compensation laws,
- The class of people intended to be protected by the laws,
- Whether there are any specific statutory exclusions that apply, and
- The relative bargaining positions of the parties (including consideration of the parties’ mental states, economic strength, and educational attainment).62
These factors tend to favor a finding that an employment relationship exists in workers’ compensation cases.63 It is not clear whether courts will consider them in other contexts.
Still Not Sure?
If a worker or a business is still confused about whether their relationship meets the legal definition of “employment” under California law, they have the option of requesting a determination by California’s Employment Development Department (the EDD). The request can be completed on Form DE 1870 (Opens in new window) and mailed to the EDD. The EDD usually provides a written determination within 60 days of receiving the request.
Violation 2
They Misclassify Regular Employees as “Exempt” Employees☍ Click to Copy a Link to This Chapter
California labor laws require most employers to follow certain rules—like paying overtime, tracking hours, or providing rest breaks. Some types of jobs, however, are exempt from these requirements. An exempt employee is someone whose job is not subject to one or more sets of wage and hour laws.
In most cases, there are three simple requirements to determine whether a worker is an exempt employee under California law:
- Minimum Salary. The employee must be paid a salary that is at least twice the state minimum wage for full-time employment.64
- White Collar Duties. The employee’s primary duties must consist of administrative, executive, or professional tasks.65
- Independent Judgment. The employee’s job duties must involve the use of discretion and independent judgment.66
If all three requirements are met, the employee will usually be classified as “exempt” from overtime, minimum wage, and rest break requirements (but not meal break requirements). There are, however, many caveats to this test.
There are also some jobs that are subject to a different test altogether. And some employees are only partially exempt; meaning, they are protected by certain labor laws, but not others. These distinctions, and the relevant test to determine whether a worker is an employee, are explored further in our article: Exempt vs. Non-Exempt Employees: Guide to California Law.
For now, we’ll take a look at the three main requirements in California to determine whether an employee is exempt or non-exempt.
The Salary Requirement
In general, an employee is only exempt if they are paid on a salary basis (rather than an hourly wage).67 The salary must be at least at least twice the state minimum wage for full-time employment.68
A salary, for these purposes, is an unvarying minimum amount of pay.69 The employee’s pay must be predetermined, and cannot change based on the number of hours worked or the quality of the work performed.70
Courts have suggested that employers can deduct from an employee’s pay for full-day absences and still consider the employee to be paid on a salary basis.71 But the employee would no longer be considered “salaried” if the employer deducted for partial-day absences.72
If the employee’s pay is based on the number of hours worked with no minimum guarantee, the employee will be treated as being an hourly employee (an thus nonexempt).73
Calculating the Minimum Salary
As mentioned above, California law requires the employee to be paid a monthly salary of at least twice the state minimum wage for full-time employment to qualify as exempt. For these purposes, Full-time employment is considered 40 hours per week.74
In 2023, employees are entitled to be paid a minimum wage of at least $15.50 per hour.75
This means that the minimum salary for exempt employees in 2023 is $5,373.34 per month (or $64,480.00 annually). These numbers are calculated by doubling the applicable minimum wage, multiplying that amount by 40 hours per week, the result of which is then multiplied by 52 weeks and divided by 12 months. This calculation gives us a monthly salary that is equal to twice the state minimum wage for full-time employment.76
Importantly, California’s minimum wage is set to increase every year on January 1st until 2023. This means that the minimum salary for exempt employees in California will also be increasing annually.
| Applicable Year | Employers with 25 or Fewer Employees | Employers with More Than 25 Employees |
|---|---|---|
| 2015 | $37,440 | $37,440 |
| 2016 | $41,600 | $41,600 |
| 2017 | $41,600 | $43,680 |
| 2018 | $43,680 | $45,760 |
| 2019 | $45,760 | $49,920 |
| 2020 | $49,920 | $54,080 |
| 2021 | $54,080 | $58,240 |
| 2022 | $58,240 | $62,400 |
| 2023 | $64,480 | $64,480 |
For more information about California’s minimum wage, please read our article: Guide to California’s Minimum Wage Laws in 2023 and Beyond.
The White Collar Duties Requirement
If the salary requirements are met, the next question is whether the employee is employed in an administrative, executive, or professional capacity.77 This is sometimes called the “white collar duties” test.
To determine whether an employee is employed in an administrative, executive, or professional capacity, we look at which duties the employee actually performs—regardless of job title or how the job is defined in a position description.78
Importantly, the white collar duties test focuses on the employee’s primary duties. California law requires an employee to devote more than half of his or her working hours to the primary duty in order to satisfy this test.79
Administrative Employees
An employee is considered employed in an administrative capacity if their primary duty is office or nonmanual work directly related to management or general business operations.80
Work relates to management or general business operations when the employee assists in running the business.81
Secretaries, store clerks, bookkeepers, and lead operators on production lines cannot be classified as administrative employees because they do not help run the business.
Examples of duties that relate to management or general business operations include responsibility for marketing, research, budgeting, finance, accounting, purchasing, quality control, human resources, labor or government relations, regulatory compliance, and database administration.82
Executive Employees
An employee is considered employed in an executive capacity when:
- Their primary duty is the management of a business or one of its departments;
- They regularly direct the work of two or more other employees; and
- They have the authority to hire and fire employees, or to make recommendations about hiring, firing, promotions, and wages that are given particular weight.83
Management includes such activities as hiring, firing, training, supervising, and disciplining employees; making work assignments; resolving employee grievances; maintaining production or sales records; ordering materials or inventory; and planning a budget.84
Executive employees receive little direct supervision.
Professional Employees
There are three types of professional employees that can qualify for exemptions:
- Learned Professionals. People who have advanced knowledge in a field of science or learning that is customarily acquired by prolonged and specialized study.87
- Creative Professionals. People who focus on invention, imagination, originality, or talent in a recognized field that is artistic or creative.88
The professional employee exemption is fact-specific and depends on the nature of the work that the employee primarily undertakes.
Of note, registered nurses who are employed to engage in the practice of nursing are not exempt professionals, but they might still be exempt as administrators or executives.89
The Discretion and Independent Judgment Requirement
To qualify as an exempt employee, California’s Labor Code requires the worker to regularly exercise discretion and independent judgment in performing their duties.90 An employee exercises discretion and independent judgment when the employee makes and implements important choices after considering competing courses of action.91
An employee’s judgment is independent when it is free from immediate direction or supervision, even if an employee who is higher in the management chain has the authority to override the decision.92
Violation 3
They Fail to Fully Pay Their Employees on Time☍ Click to Copy a Link to This Chapter
In general, the agreement between the employee and employer sets the terms of employment, including when wages will be paid. But California law imposes some requirements on employers, regardless of their agreement with their employees.
General Rule: Semimonthly Payments
Most California employees must be paid at least twice a month.93 An employer must establish an employee’s regular paydays before wages are first paid.94
The employer must post a conspicuous notice at the place of work or at the office where employees are paid, specifying the regular paydays and the time and place of payment.95
If employees are paid semimonthly (twice a month) and the work periods for which they are paid are the 1st through the 15th and the 16th through the end of the month, wages must be paid on the following schedule:96
- Wages earned between the 1st and 15th day of the month must be paid between the 16th and 26th day of the same month.
- Wages earned between the 16th and the last day of the month must be paid between the 1st and the 10th day of the following month.
Alternative Pay Schedules
If employees are paid on any other schedule the employer must generally pay wages no later than 7 days after the end of each work period.97
This rule applies to employees paid on a weekly or biweekly (every two weeks) basis, as well as those who are paid semimonthly with work periods other than the 1st through the 15th and the 16th through the end of the month.98
Overtime Wages
Wages for overtime earned during a work period must be paid not later than the regular payday for the next work period.99
Exempt Employees
Certain employees are exempt from many of California’s labor laws. They are usually employees who work in administrative, executive, or professional positions.100 Exempt employees are paid on a different schedule than other employees.
They may be paid once a month, provided that the payment is made on or before the 26th of the month and includes wages for the entire month—including wages between the date of the payment and the end of the month that the employee has not yet earned.101
Employees who are unsure if they are an exempt employee can consult our article How to Tell If an Employee Is “Exempt” under California Law.
Vehicle Sales Commission Payments
Commissions paid by a licensed vehicle dealer may be paid once each month on a date designated as a salesperson’s payday.102
Agricultural Employees
Agricultural employees who are not provided room and board and who are paid on the semimonthly schedule discussed above must be paid no later than the 22nd of the same month for work performed between the 1st and 15th, and no later than the 7th of the next month for work performed between the 16th and the last day of the month.103
Other Exceptions
Certain employees, including household domestic employees, who receive room and board as part of their compensation may be paid once each month on a date designated in advance. Wages paid on that payday must cover the payday and all days worked after the prior payday (which cannot be more than 31 days before the current payday).104
Depending on the employees type of work and employment agreement, there may be other exceptions to these schedules. Employees should consult an employment lawyer if they need advice about when their wages are due.
Violation 4
They Fail to Follow the Rules on Final Paychecks☍ Click to Copy a Link to This Chapter
The greatest risk of not being paid comes when an employee is discharged. The timing of an employee’s final paycheck depends on whether they are fired or they quit.
Terminations
In general, an employee who is fired must be paid all unpaid wages that have been earned up to and including the date of termination. That payment must be made on the same day that the employee is terminated.105
There are, however, limited exceptions to this rule, depending on the industry in which the worker is employed.106
Resignations
Employees who quit and give notice at least 72 hours before their last day of work must be paid their final wages on their last day, assuming it is the day stated in the notice.107
Employees who quit without giving such notice must be paid their final wages within 72 hours after their last day of work.108
Vacation Pay
California law regards a paid vacation as a form of wages.109 Paid vacations are compensation for labor the employee performs, but the payment is delayed until the employee takes the vacation.110
Employers are not required to offer vacation pay to their employees,111 but they must follow certain rules if they do.
If an employment agreement includes paid vacations, an employee is entitled to be paid wages for unused vacation time that has vested at the time the employee’s work ends.112 The right to a paid vacation vests as the employee performs the work that entitles the employee to a paid vacation.113
When employment is terminated, the employee is entitled to be paid for the portion of the employee’s unused paid vacation that the employee has earned.114
Example
An employment agreement gives the employee the right to take two weeks of paid vacation after one year of work. If the employee is terminated after six months of work, the employee has earned half of the paid vacation. The employee is entitled to one week of extra wages at the time of termination.
California employers are not allowed to circumvent the right to be paid the proportionate share of vacation pay that the employee has earned by conditioning entitlement to vacation on the completion of a fixed period of work.115
So, even if an employment agreement states that the employee is not entitled to vacation pay until the employee has worked a full year, the employee must be paid for unused paid vacation in proportion to the time that the employee worked before employment ended.116
The Waiting Time Penalty
California law provides for a “waiting time penalty” when employers willfully fail to pay final wages, in full and on time, after employment ends.117
The penalty for late payment of wages advances the public policy of assuring that employees are paid promptly for their work.118 It incentivizes employers to pay wages in a timely manner.119
Calculating the Penalty
The waiting time penalty consists of a full day of wages for each day that payment is delayed.120 The penalty continues to accrue for as much as 30 days after discharge, depending on when payment is fully satisfied.121
The waiting time penalty is calculated by computing the employee’s daily wage rate and then multiplying it by the number of days that payment is delayed, up to a maximum of 30 days.122
The daily wage rate is typically calculated by adding base wages, commissions, bonuses, and vacation pay that the employee earns in a year, dividing that sum by 52 weeks, and dividing that result by 40 hours.123
When a Failure to Pay is “Willful”
A failure to pay wages on time is willful if the failure is intentional.124 An employer does not fail to pay wages willfully when there is a good faith dispute about the employee’s entitlement to the unpaid wages.125
A good faith dispute exists when an employer presents a legitimate legal or factual defense to the payment of wages, even if the employer does not prevail.126
Employer’s Insufficient Funds
The waiting time penalty applies if the employer intentionally pays final wages with a check that cannot be cashed or deposited because it is not supported by sufficient funds or because it is drawn on a bank where the employer no longer has an account.
When the paycheck bounces or is rejected in this way, a penalty of one day of additional wages for each day that the check is not satisfied continues for a maximum of 30 days.
Violation 5
They Fail to Fully Relieve Employees of Duty during Breaks☍ Click to Copy a Link to This Chapter
California employees who are considered non-exempt127 have a legal right to receive meal breaks and rest periods.128 And even most employees who are considered exempt still have a right to take meal breaks (but not rest periods).129
The number of breaks depends on the length of the employee’s shift. A rough guide can be found on the following chart:130
| Shift Length | Paid 10-Minute Rest Breaks | Unpaid 30-Minute Meal Breaks |
|---|---|---|
| Less than 3.5 Hours | 0 | 0 |
| 3.5–5 Hours | 1 | 0 |
| 5.1–6 Hours | 1 | 1† |
| 6.1–10 Hours | 2 | 1 |
| 10.1–14 Hours | 3 | 2 |
| 14+ Hours | At Least 4 | 2‡ |
| † Can be waived by mutual consent. | ||
| ‡ Only one of these meal breaks can be waived, and even then only if the employee works less than 12 hours. | ||
When an employer fails to provide one of these rest periods or meal breaks, the employee is entitled to one extra hour of pay at the employee’s regular hourly rate.131
If the employer fails to provide multiple rest breaks or meal periods, the employee can earn up to one extra hour per workday for their missed rest periods132 and an additional one hour per workday for their missed meal breaks.133
Thus, a twelve-hour shift with no rest or meal breaks will entitle the employee to two extra hours of pay at the employee’s regular hourly rate.134
Rest Break Rights in California
Employers of non-exempt employees have a legal duty to permit their employees to enjoy a rest period when they work shifts that exceed a certain number of hours.135 A rest period is an uninterrupted 10-minute period during which employees are not required to work. Employees are entitled to be paid during their rest periods.136
Employers are required to provide suitable resting facilities in an area separate from the toilet rooms during work hours.137
The number of rest periods an employee must take will depend on the length of their shift.138
In general, employees have a right to ten minutes of rest time for every four hour period they work. Employees are not, however, entitled to a break period if they work fewer than three-and-a-half hours.139
If an employee works a “major fraction” of a four-hour period, they are entitled to a ten-minute rest period for the entire four-hour period.140 A major fraction of a four-hour period, for these purposes, is more than two hours.141
Putting these rules together, a non-exempt employee is entitled to rest breaks as follows:
- Less Than 3.5 Hours. An employee who works less than three-and-a-half hours is not entitled to a meal break.142
- 3.5 Hours or More. An employee who works three-and-a-half hours or more is entitled to one ten-minute rest period.143
- More than 6 Hours. An employee who works more than six hours is entitled to two ten-minute rest periods, for a total of 20 minutes of resting time during their shift.144
- More than 10 Hours. An employee who works more than ten hours is entitled to three ten-minute rest periods, for a total of 30 minutes of resting time during their shift.145
- And so on… An employee is entitled to another ten-minute rest period every time they pass another four-hour milestone.146
California’s regulations require rest breaks to fall in the middle of work periods “insofar as practicable.”147 This wording isn’t very precise, so there is some flexibility about when rest breaks may be provided.
In general, employers are required to make a good faith effort to permit rest breaks to be taken in the middle of each work period. But if there are practical considerations that render that impractical, the employer can give the rest periods at other times during the shift.148
An employer is required to authorize and permit the amount of rest period time to which an employee is entitled.149 If it does not, it has violated the law and is liable for a penalty (which is described in a section below).
California law permits employees to skip rest periods if they so choose, and there is no penalty to the employer if they do so.150 But employers may not pressure or encourage their employees to skip rest periods.151
Finally, California employers may not require their employees to remain on-site or on-call during rest periods.152 Thus, employees must be free to do as they please during their uninterrupted rest periods. Otherwise, the employer will be required to pay the employee penalties.
Meal Break Rights in California
Employers of non-exempt employees have a legal duty to permit their employees to take meal breaks153 when they work shifts that exceed a certain number of hours.154
A meal break is an uninterrupted 30-minute period during which employees are free to attend to their personal business.155 Meal breaks are usually unpaid, unless the employer fails to relieve the employee of all duties.156
Despite its name, a meal break does not have to be used for eating, and employers don’t need to provide their employees with food during this time. Employees on a meal break may leave the premises, run personal errands, or remain on site—the choice belongs to them.157
As with rest periods, the number of meal breaks an employee must take will depend on the length of their shift, as follows:
- 5 Hours or Less. An employee who works five hours or less is not entitled to a meal break.158
- More than 5 Hours. An employee who works more than five hours is entitled to one 30-minute meal break.159
- More than 10 Hours. An employee who works more than ten hours is entitled to a second 30-minute meal break.160
In computing the right to a meal break, the relevant question is how many hours the employee actually works—not how many they were scheduled for. An employee’s first meal break must start before the end of the employee’s fifth hour of work.161
If an employee is entitled to a second meal period, it must start before the end of the employee’s tenth hour of work.162
Relieving Workers of All Duty
In providing a legally-required rest or meal break, an employer must:
- Relieve their employee of all duty,
- Relinquish control of the employee’s activities, and
- Permit their employee a reasonable opportunity to take the entire 30-minute break uninterrupted.163
The employer has no obligation to police meal breaks or ensure that the employee performs no work during the meal break. But they may not impede or discourage their employees from taking one.164
Waiver of Meal Breaks
If the employee works six hours or less, the meal period can be waived by mutual consent of the employer and the employee.165 If the employee works more than six hours, the meal period may not be waived.
If the employee works twelve hours or less, their second meal period can be waived by mutual consent of the employer and the employee—but only if they didn’t waive their first meal period.166
There is no requirement that these waivers be in writing; a verbal waiver is enough. But it is still usually a good idea for employers to obtain a written waiver to protect themselves.
On-Duty Meal Breaks
Under limited situations, employers are not required to relieve the employee of all of their work duties during a meal break. These are called on-duty meal breaks.167
Employees must be paid for an on-duty meal break, but they are not entitled to the penalty they would otherwise receive for a missed meal break.168
On-duty meal breaks are only allowed when:
- The nature of the work prevents an employee from being relieved of all duty,169 and
- The employee and employer agree in writing to an on-the-job, paid meal period.170
The written agreement must state that the employee can revoke it at any time.171
On-Site Meals
If an employee is required to take their meal break at the employer’s worksite, the employer must provide them with a suitable place to eat.172
Likewise, if a meal period occurs on a shift beginning or ending between 10:00 p.m. and 6:00 a.m., the employer must provide facilities for securing hot food and drink or for heating food or drink. The employer must also provide a suitable sheltered place where food or drinks can be consumed.173
Violation 6
They Fail to Track or Pay Overtime☍ Click to Copy a Link to This Chapter
Both federal and California law require nonexempt employees to be paid overtime when the employee works more than 40 hours in a workweek.174 But California law goes further by providing rights that exceed federal overtime protections.
In California, overtime must be paid to nonexempt employees in most occupations when the employee works:
- More than 8 hours in a workday,
- More than 40 hours in a workweek, or
- A seventh consecutive day in any workweek.175
When California law requires an employer to pay overtime, the usual overtime rate of pay is one and one-half the employee’s regular rate of pay.176 This is often known as being paid “time and a half.”
However, an overtime rate of twice the employee’s regular rate of pay (often called “double time”) applies to hours worked:
- In excess of 12 hours in a workday, or
- In excess of 8 hours on the seventh consecutive workday in a workweek.177
Some of these words have a specific legal meaning. A workday for these purposes is a 24-hour period that begins at the same time each calendar day.178 A workweek is a period of seven consecutive days beginning on the same calendar day each week.179
Employers are responsible for designating the start of the workweek.180 Knowing how the workweek has been designated is often important for deciding whether overtime is owed.
Example
An employer designates a workweek to start on Monday and end on Sunday. An employee who begins work on Wednesday and works seven consecutive days before taking a day off has not worked seven consecutive days in the workweek and is not entitled to overtime.181
The Employee’s “Regular Rate” of Pay
Overtime rates are based on the employee’s regular rate of pay.182 Computing an employee’s regular rate depends on how the employee is compensated.
If an employee is paid by the hour and receives no other compensation, the hourly rate of pay is the employee’s regular rate.183
The regular rate of a nonexempt salaried employee who regularly works 40 hours per week is computed by dividing the weekly salary by 40.184 Thus, a nonexempt employee’s salary only compensates them for regular, non-overtime hours.185
The regular rate can be more difficult to compute under other circumstances—particularly when an employee receives more than one form of compensation. The general rule is that the regular rate must be based on wages and most other forms of compensation an employee earns for work performed during the workweek, excluding overtime.186
Importantly, employers may not designate rates of pay with the intent to evade overtime laws.187 As such, the employee’s regular rate of pay must be calculated in a consist manner that accurately reflects the employer’s pay practices.
Example
It is unlawful to pay a higher hourly rate during weeks when no overtime is worked and a lower hourly rate during weeks when employees work overtime in order to reduce the employee’s regular rate.
Defining “Hours Worked”
Employers are required to pay overtime to nonexempt employees for all hours worked in excess of 8 in one day or 40 in one week, as well as hours worked on a seventh consecutive day in a workweek.188
There are two tests to determine whether an employee has worked during a given period of time:
- The employee works or is permitted to work, or
- The employee is subject to the control of an employer.189
The two tests are independent of each other. Hours during which an employee is subject to the employer’s control will count as “hours worked” even if the employer is not required or permitted to work during those hours.190
Workweeks vs. Calendar Weeks
Both federal and California law require nonexempt employees to be paid overtime when the employee works more than 40 hours in a workweek.191 The law gives employers flexibility to designate a workweek that meets their needs.192
An employer’s designated workweek does not need to match a traditional calendar week. For example, employers can establish rotating or alternating schedules that have workers starting work at different times on different days.193
The workweek that an employer uses doesn’t need to coincide with the workweek that the employee works, but any difference between the two must be justified by a legitimate business purpose.194 Employers cannot structure workweeks in a way that is meant to avoid paying overtime.195
Alternative Workweeks
Nonexempt employees in California usually have a right to earn overtime by working more than 8 hours in a workday.196 Under some circumstances, however, an employer may adopt an alternative schedule that permits employees to work up to 10 hours per day without paying overtime.197
An alternative workweek is a schedule of up to 10 hours per day within a 40 hour workweek in which the employer does not pay an overtime rate of compensation.198 Some industries, like health care, can adopt alternative workweeks that differ slightly from this model.199
Before adopting an alternative workweek, several requirements must be met. The most notable include:
- Proposal. The employer must propose, in the form of a written agreement, the alternative workweek schedule. This proposal can include a single work schedule, or a menu of work schedule options from which each employee would be entitled to choose.200
- Written Disclosure. The employer must disclose, in writing, the effects of the proposed arrangement on the employees’ wages, hours, and benefits. The disclosure must include notice of at least one meeting, held at least 14 days prior to voting, where the effects of the alternative workweek schedule will be discussed.201
- Reporting. The results of the secret ballot election must be reported by the employer to the Division of Labor Standards Enforcement (Opens in new window) within 30 days of the results becoming final.204
During this process, employees may not be punished or retaliated against for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal.205
Importantly, even if this procedure is adopted and an alternative workweek schedule is adopted, the employer still must pay overtime for hours worked in excess of 10 hours per workday or 40 hours in a workweek.206
The rate of overtime compensation is usually one-and-a-half times the employee’s regular rate of pay. But if the employee works more than 12 hours in a day or more than 8 hours on days outside the regularly-scheduled workdays, the overtime rate is double the employee’s regular rate.207
Violation 7
They Retaliate against Employees Who Challenge Legal Violations☍ Click to Copy a Link to This Chapter
All California employers have legal obligations they must follow. When they violate the law in some way, employees may wish to complain about or report the employer’s wrongdoing. In many cases employees are protected from being punished or fired if they do so.
Reporting Unlawful Activities
In California, if an employee reasonably believes that the employer has violated a law or regulation, the employee has a right to report that violation to the government. The employee also has a right to report that violation to an employee that supervises them.208
Employers are prohibited from punishing or firing employees for disclosing information about a legal violation to the government, a law enforcement agency, or their supervisor.209
Along these same lines, an employer cannot prohibit employees from working with or testifying before any government agency that may be investigating or prosecuting the employer for legal violations.210
Finally, employers cannot fire or punish employees for refusing to participate in unlawful activities.211
An employer who discharges an employee for reporting unlawful activities commits wrongful termination.
Discrimination and Harassment Complaints
Employers are prohibited from firing or punishing employees who complain about, report, or otherwise oppose unlawful discrimination or harassment.212
An employer who fires an employee for opposing unlawful discrimination or harassment has committed wrongful termination.
Complaining About Unpaid Wages
Employees have a right to file a complaint with California’s Labor Commissioner when they believe they have been underpaid.213 This right would be meaningless if employers were allowed to fire employees who file such complaints.
California law prohibits employers from terminating, discharging, or in any manner retaliating against employees who file a wage and hour complaint with the Labor Commissioner.214
Additionally, employees have a right to complain to their employer that they are owed unpaid wages. Even if no claim is filed with the Labor Commissioner, employers are prohibited from terminating, discharging, or in any manner retaliating against employees for complaining about unpaid wages.215
To learn more about wage claims with the Labor Commission, please review our article: How to File a Wage & Hour Claim in California.
Discussing Income
Employees have a right to discuss the amount of their wages with other employees. Employers are prohibited from firing their employees for disclosing the amount of their wages to anyone.216
Complaining About Unlawful Work Conditions
Employers are prohibited from firing or punishing employees who complain about workplace safety issues.217 Employers are also prohibited from firing or punishing employees who reporting an issue of employee safety or health to a government agency.218 This means that employees cannot be fired for filing an OSHA complaint (Opens in new window).
Additionally, employers usually cannot fire or punish an employee who refuses to perform work that would violate any occupational safety or health standard.219 And employees are protected if they have to testify in a court proceeding about dangerous work conditions.220
Discussing Work Conditions
Employees have a right to discuss their work conditions—as long as those discussions don’t involve matters that may be trade secrets or legally-protected.221
In keeping with this right, employers are prohibited from terminating employees for disclosing information about their working conditions to other people.222 Again, this rule is limited to information that is not proprietary, secret, or otherwise legally-protected.
This rule is mainly intended to protect employees who complain or discuss potentially unsafe or unlawful working conditions.
Requesting a Reasonable Accommodation
Several types of employees have a right to receive a reasonable accommodation from their employer. A reasonable accommodation is an adjustment to the employee’s work environment or job duties that can enable the employee to perform the essential functions of a job in suitable conditions.
Common examples of situations in which a reasonable accommodation may be required include the following:
- Employees with disabilities often have a right to work under different conditions than other employees.223
- They may also have a right to time off of work, as an accommodation for their disability.224
- Religious employees may have a right to an accommodation of their religious practices and observances.225
- Employees who have difficulty reading may have a right to a reasonable accommodation.226
- Employees with substance abuse problems may have a right to a reasonable accommodation for them to participate in an alcohol or drug rehabilitation program.227
Employers generally cannot retaliate against employees in these situations for requesting an accommodation. This means that an employer will usually commit wrongful termination if they discharge an employee for requesting or requiring a reasonable accommodation.
Filing a Workers’ Compensation Claim
Under California law, it is the state’s policy “that there should not be discrimination against workers who are injured in the course and scope of their employment.”228 California courts have interpreted this policy to protect employees from retaliation for filing a workers’ compensation claim.229
The broad nature of that policy favors employees who are fired or treated unfairly as the result of a job-related injury.230 In general, an employer commits wrongful termination if they fire an employee in retaliation for filing a workers’ compensation claim.
References
Labor Code, § 3353 [“‘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.”].↥
Labor Code, § 3351; see also Cal. Code Regs., tit. 8, § 11150, subd. (2)(F) [“‘Employee’ means any person employed by an employer.”].↥
See, e.g., Cal. Code Regs., tit. 8, § 11150, subd. (2)(G) [“‘Employer’ means any person as defined in Section 18 of the Labor Code, 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.”].↥
29 U.S.C. § 207; Labor Code, § 510, subd. (a).↥
See Labor Code, § 512, subd. (a); Cal. Code of Regs., tit. 8, §§ 11010–11170 [wage orders of the California Industrial Welfare Commission].↥
Labor Code, § 1182.12, subds. (b).↥
Labor Code, § 2750 [“The contract of employment is a contract by which one, who is called the employer, engages another, who is called the employee, to do something for the benefit of the employer or a third person.”].↥
Labor Code, § 18 [“‘Person’ means any person, association, organization, partnership, business trust, limited liability company, or corporation.”].↥
Labor Code, § 2775, subd. (b)(1) [“For purposes of this code and the Unemployment Insurance Code, and for the purposes of wage orders of the Industrial Welfare Commission, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied: . . . .”].↥
Labor Code, § 2775, subd. (b)(1)(A) [“The person 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.”].↥
Labor Code, § 2775, subd. (b)(1)(B) [“The person performs work that is outside the usual course of the hiring entity’s business.”].↥
Labor Code, § 2775, subd. (b)(1)(C) [“The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.”].↥
Labor Code, § 1182.12↥
Labor Code, § 515.↥
Labor Code, § 510.↥
Labor Code, § 6300, et seq.↥
Labor Code, § 2775, subd. (b)(1).↥
Labor Code, § 2775, subd. (b)(1).↥
Labor Code, § 2775, subd. (b)(1).↥
Labor Code, § 2775, subd. (b)(3) [“If a court of law rules that the three-part test in paragraph (1) cannot be applied to a particular context based on grounds other than an express exception to employment status as provided under paragraph (2), then the determination of employee or independent contractor status in that context shall instead be governed by the California Supreme Court’s decision in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello).”].↥
S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350; see also Labor Code, § 3353 [defining “independent contractor” as “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.”].↥
See, e.g., Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129, 1145–1146 [applying the manner and means test in the context of a wage and hour class action case].↥
See, e.g, Tieberg v. Unemployment Ins. Appeals Board (1970) 2 Cal.3d 943, 946 [“The Unemployment Insurance Code defines employment as service performed for wages or under a contract of hire. The principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.”].↥
See, e.g., S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350.↥
See, e.g., An Independent Home Support Service, Inc. v. Superior Court (2006) 145 Cal.App.4th 1418, 1425 [mentioning state disability insurance and using the manner and means test].↥
See Employment Development Department, Form DE 38: Employment Determination Guide (2016), available here (Opens in new window).↥
Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 10 [“The essence of the test is the ‘control of details’—that is, whether the principal has the right to control the manner and means by which the worker accomplishes the work”]; see also Labor Code, § 3351 [“‘Employee’ means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed . . . .”.↥
Tieberg v. Unemployment Ins. Appeals Board (1970) 2 Cal.3d 943, 946–947.↥
Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 528 [“Whether a common law employer-employee relationship exists turns foremost on the degree of a hirer’s right to control how the end result is achieved.”].↥
Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 535.↥
Hardin v. Elvitsky (1965) 232 Cal.App.2d 357, 373 [“The determination of whether the status of an employee or that of an independent contractor exists is governed primarily by the right of control which rests in the employer, rather than by his actual exercise of control; and where no express agreement is shown as to the right of the claimed employer to control the mode and manner of doing the work, the existence or non-existence of the right must be determined by reasonable inferences drawn from the circumstances shown, and is a question for the jury.”].↥
Burlingham v. Gray (1943) 22 Cal.2d 87, 100 [“Where there is shown no express agreement as to the right of the claimed employer to control the mode and manner of doing the work, the existence or nonexistence of the right must be determined by reasonable inferences drawn from the circumstances shown, and is a question for the jury.”].↥
S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350 [“[T]he courts have long recognized that the ‘control’ test, 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.”].↥
Arnold v. Mutual of Omaha Ins. Co. (2011) 202 Cal.App.4th 580, 584.↥
S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 351 [considering “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”].↥
Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 539 [“[T]he hirer’s right to fire at will and the basic level of skill called for by the job, are often of inordinate importance.”].↥
Tieberg v. Unemployment Ins. Appeals Board (1970) 2 Cal.3d 943, 949 [considering “whether or not the one performing services is engaged in a distinct occupation or business”].↥
Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 10 [considering “whether the worker is engaged in a distinct occupation or business”].↥
S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 355 [noting that other jurisdictions consider “the alleged employee’s opportunity for profit or loss depending on his managerial skill”].↥
Arnold v. Mutual of Omaha Ins. Co. (2011) 202 Cal.App.4th 580, 584 [considering “whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work”].↥
Tieberg v. Unemployment Ins. Appeals Board (1970) 2 Cal.3d 943, 949 [considering “the length of time for which the services are to be performed”].↥
Varisco v. Gateway Science & Engineering, Inc. (2008) 166 Cal.App.4th 1099, 1103 [considering “the method of payment, whether by the time or by the job”].↥
Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 539 [“[T]he hirer’s right to fire at will and the basic level of skill called for by the job, are often of inordinate importance.”].↥
S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 351 [considering “whether or not the parties believe they are creating the relationship of employer-employee”].↥
Germann v. Workers’ Comp. Appeals Bd. (1981) 123 Cal.App.3d 776, 783 [“Not all these factors are of equal weight. The decisive test is the right of control, not only as to results, but as to the manner in which the work is done. . . . Generally, however, the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.”].↥
See Labor Code, § 3357 [“Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.”]; see also Jones v. Workers’ Comp. Appeals Bd. (1971) 20 Cal.App.3d 124, 127 [applying a presumption that a worker is an employee if they “perform work ‘for another'”].↥
S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349 [“The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced.”].↥
Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 877 [“The agreement characterizing the relationship as one of ‘client -- independent contractor’ will be ignored if the parties, by their actual conduct, act like ’employer -- employee.'”].↥
S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349.↥
Yellow Cab Coop. v. Workers’ Comp. Appeals Bd. (1991) 226 Cal.App.3d 1288, 1295 [“the statutory test of ‘control’ may be satisfied even where ‘complete control’ or ‘control over details’ is lacking -- at least where the principal retains pervasive control over the operation as a whole, the worker’s duties are an integral part of the operation, the nature of the work makes detailed control unnecessary, and adherence to statutory purpose favors a finding of coverage.”].↥
Yellow Cab Coop. v. Workers’ Comp. Appeals Bd. (1991) 226 Cal.App.3d 1288, 1295.↥
Yellow Cab Coop. v. Workers’ Comp. Appeals Bd. (1991) 226 Cal.App.3d 1288, 1295.↥
Labor Code, § 2750.5; see Bus. & Prof. Code, §§ 7000–7191 [contractor licensing].↥
Labor Code, § 2750.5 [“There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor.”].↥
Labor Code, § 2750.5.↥
Labor Code, § 2750.5, subd. (c) [requiring proof that “the individual’s independent contractor status is bona fide and not a subterfuge to avoid employee status”].↥
See Labor Code, § 3201; Cal. Const., art. XIV, § 4.↥
Labor Code, § 3205.↥
See, e.g., Johnson v. Workmen’s Comp. Appeals Bd. (1974) 41 Cal.App.3d 318, 321.↥
Greydanus v. Industrial Accident Comm’n (1965) 63 Cal.2d 490, 493 [“[I]t is well recognized that workmen’s compensation statutes are to be construed liberally in favor of awarding compensation.”].↥
S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 351 [“[T]he concept of ’employment’ embodied in the [Workers Compensation] Act is not inherently limited by common law principles. We have acknowledged that the Act’s definition of the employment relationship must be construed with particular reference to the ‘history and fundamental purposes’ of the statute.”].↥
Truesdale v. Workers’ Comp. Appeals Bd. (1987) 190 Cal.App.3d 608, 617; Johnson v. Workmen’s Comp. Appeals Bd. (1974) 41 Cal.App.3d 318, 322 [“[R]ather than relying merely upon the specific and several tests listed in Tieberg and Empire Star, we should also consider (a) the purpose of the statute and the intention of the Legislature, (b) the persons sought to be protected, (c) if the petitioner is or is not of a class of persons generally intended to be protected, (d) whether there are any other specific statutory exclusions, and (e) what are the relative bargaining positions of the parties mentally, economically and educationally.”].↥
Greydanus v. Industrial Accident Comm’n (1965) 63 Cal.2d 490, 493.↥
Labor Code, § 515, subd. (a); Cal. Code of Regs., tit. 8, § 11040 [providing that, for each exempted category, the employee must earn “a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment”].↥
Labor Code, § 515, subd. (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.”].↥
Labor Code, § 515, subd. (a) [requiring employees to “customarily and regularly exercises discretion and independent judgment in performing” the duties of their job].↥
Labor Code, § 515, subd. (a); Cal. Code of Regs., tit. 8, § 11040.↥
Labor Code, § 515, subds. (a), (c).↥
Negri v. Koning & Associates (2013) 216 Cal.App.4th 392, 395; Kettenring v. Los Angeles Unified School Dist. (2008) 167 Cal.App.4th 507, 513–514.↥
Negri v. Koning & Associates (2013) 216 Cal.App.4th 392, 398 [“Since federal law requires that, in order to meet the salary basis test for exemption the employee would have to be paid a predetermined amount that is not subject to reduction based upon the number of hours worked, state law requirements must be at least as protective.”]; Kettenring v. Los Angeles Unified School Dist. (2008) 167 Cal.App.4th 507, 513–514 [salary cannot be “subject to reduction because of variations in the quality or quantity of the work performed”], quoting 29 C.F.R. § 541.602(a).↥
Conley v. Pacific Gas and Elec. Co. (2005) 131 Cal.App.4th 260, 267; 29 C.F.R. § 541.602(b)(1).↥
Conley v. Pacific Gas and Elec. Co. (2005) 131 Cal.App.4th 260, 267 [“It is undisputed that the combined effect of these provisions of federal law is to preclude employers from docking the pay of an employee for an absence of less than a day (a partial-day absence). If they do, then the involved employees do not meet the salary basis test, and are nonexempt for purposes of overtime pay.”].↥
Negri v. Koning & Associates (2013) 216 Cal.App.4th 392, 400.↥
Labor Code, § 515, subds. (a), (c).↥
Labor Code § 1182.12, subd. (b). The minimum wage applies to “all industries” and to “any occupation” except outside salespersons and individuals participating in certain national service programs. (Labor Code, §§ 1171, 1182.12.)↥
Labor Code § 515(a).↥
Labor Code, § 515, subd. (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.”].↥
29 C.F.R. § 541.2; Negri v. Koning & Associates (2013) 216 Cal.App.4th 392, 398 [“[S]tate law requirements for exemption from overtime pay must be at least as protective of the employee as the corresponding federal standards.”].↥
Labor Code, § 515, subd. (e) [“For the purposes of this section, ‘primarily’ means more than one-half of the employee’s worktime.”].↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. (1)(A)(2) [defining administrative employee under California law]. An employee might also be considered administrative if they perform “functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein.” (Id.)↥
29 C.F.R. § 541.201(a).↥
29 C.F.R. § 541.201(b).↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. (1)(A)(1) [defining executive employee].↥
29 C.F.R. § 541.102.↥
“Teaching” for these purposes only applies to teaching under a certificate from the Commission for Teacher Preparation and Licensing or teaching in an accredited college or university. (Cal. Code of Regs., tit. 8, § 11040, subd. (2)(R).↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. (3)(A).↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. (3)(B).↥
29 C.F.R. § 541.300 [defining professional employee under the federal FLSA]; Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. (1)(A)(3) [defining professional employee under California law].↥
Labor Code, § 515, subd. (f)(1).↥
Labor Code, § 515, subd. (a).↥
29 C.F.R. § 541.202(a) [“In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered.”].↥
29 C.F.R. § 541.202(c) [“The exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision. However, employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level.”].↥
Labor Code, 204, subd. (a).↥
Labor Code, 204, subd. (a) [“All wages, other than those mentioned in Section 201, 201.3, 202, 204.1, or 204.2, earned by any person in any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays.”].↥
Labor Code, § 207 [“Every employer shall keep posted conspicuously at the place of work, if practicable, or otherwise where it can be seen as employees come or go to their places of work, or at the office or nearest agency for payment kept by the employer, a notice specifying the regular pay days and the time and place of payment, in accordance with this article.”].↥
Labor Code, 204, subd. (a)↥
Labor Code, § 204, subd. (d) [“The requirements of this section shall be deemed satisfied by the payment of wages for weekly, biweekly, or semimonthly payroll if the wages are paid not more than seven calendar days following the close of the payroll period.”]. Weekly pay is governed by Labor Code section 204b.↥
Labor Code, §§ 204, subd. (d), 204b.↥
Labor Code, § 204, subd. (b).↥
Labor Code, § 515, subd. (a); Cal. Code of Regs., tit. 8, § 11040 ↥
Labor Code, § 204, subd. (a).↥
Labor Code, § 204.1.↥
Labor Code, § 205.5.↥
Labor Code, 205 [applying to employees in “agricultural, viticultural, and horticultural pursuits, in stock or poultry raising, and in household domestic service, when the employees in such employments are boarded and lodged by the employer”].↥
Labor Code, § 201, subd. (a) [“If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.”].↥
Employers may delay payment for up to 72 hours when they lay off a group of seasonal employees involved in “the curing, canning, or drying of any variety of perishable fruit, fish or vegetables.” (Labor Code, § 201, subd. (a).) Other rules apply to terminations in specified industries, including certain employees in the movie industry (Labor Code, § 201.5), employees who drill oil (Labor Code, § 201.7), and certain employees who work in venues that host live theatrical or concert events (Labor Code, § 201.9).↥
Labor Code, § 202, subd. (a) [“If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting.”].↥
Labor Code, § 202, subd. (a).↥
Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 779 [“It is established that vacation pay is not a gratuity or a gift, but is, in effect, additional wages for services performed.”].↥
Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 780 [“[V]acation pay is simply a form of deferred compensation.”].↥
Henry v. Amrol, Inc. (1990) 222 Cal.App.3d Supp. 1, 5 [the law “does not require that an employer include a paid vacation as a portion of his employees’ compensation”].↥
Labor Code § 227.3.↥
Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 784 [“Case law from this state and others, as well as principles of equity and justice, compel the conclusion that a proportionate right to a paid vacation ‘vests’ as the labor is rendered. Once vested, the right is protected from forfeiture by section 227.3.”]↥
Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 784 [“On termination of employment, therefore, the statute requires that an employee be paid in wages for a pro rata share of his vacation pay.”].↥
Labor Code, § 227.2 [“[A]n employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination.”].↥
Labor Code, § 203.↥
Labor Code, § 203, subd. (a); see McLean v. State of California (2016) 1 Cal.5th 615, 619 [“An ’employer’ that ‘willfully fails to pay’ in accordance with sections 201 and 202 ‘any wages of an employee who is discharged or who quits’ is subject to so-called waiting-time penalties of up to 30 days’ wages.”].↥
Mamika v. Barca (1998) 68 Cal.App.4th 487, 491–492.↥
Mamika v. Barca (1998) 68 Cal.App.4th 487, 493 [“This larger penalty acts as a disincentive to employers who are reluctant to pay wages in a timely manner, thus furthering the intent of the statutory scheme.”].↥
Labor Code, § 203, subd. (a) [“If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. An employee who secretes or absents himself or herself to avoid payment to him or her, or who refuses to receive the payment when fully tendered to him or her, including any penalty then accrued under this section, is not entitled to any benefit under this section for the time during which he or she so avoids payment.”].↥
Labor Code, § 203.↥
Mamika v. Barca (1998) 68 Cal.App.4th 487, 493 [“[T]he critical computation required by section 203 is the calculation of a daily wage rate, which can then be multiplied by the number of days of nonpayment, up to 30 days.”].↥
Drumm v. Morningstar, Inc. (N.D. Cal. 2010) 695 F.Supp.2d 1014, 1019 [approving jury instruction specifying this manner of calculation].↥
Cal. Code of Regs., tit. 8, § 13520 [“A willful failure to pay wages within the meaning of Labor Code Section 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due.”].↥
Cal. Code of Regs., tit. 8, § 13520 [“[A] good faith dispute that any wages are due will preclude imposition of waiting time penalties under Section 203.”].↥
Cal. Code of Regs., tit. 8, § 13520, subd. (a) [“A ‘good faith dispute’ that any wages are due occurs when an employer presents a defense, based in law or fact which, if successful, would preclude any recover on the part of the employee. The fact that a defense is ultimately unsuccessful will not preclude a finding that a good faith dispute did exist. Defenses presented which, under all the circumstances, are unsupported by any evidence, are unreasonable, or are presented in bad faith, will preclude a finding of a ‘good faith dispute.'”].↥
If you are unsure whether an employee is exempt or non-exempt, visit our previous article, Exempt vs. Non-Exempt Employees: Guide to California Law.↥
See Labor Code, § 512, subd. (a); Cal. Code of Regs., tit. 8, §§ 11010–11170 [wage orders of the California Industrial Welfare Commission].↥
Labor Code, §§ 512, subd. (a), 516, subd. (a) [stating that, with the exception of meal breaks described in Labor Code section 512, “the Industrial Welfare Commission may adopt or amend working condition orders with respect to break periods”].↥
Labor Code, § 512, subd. (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.”].↥
See, e.g., Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(B).↥
Labor Code, § 226.7, subd. (c); Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 12(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.”].↥
Labor Code, § 226.7, subd. (c); Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 11(B) [“If an employer fails to provide an employee a meal 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 meal period is not provided.”].↥
United Parcel Service, Inc. v. Superior Court (2011) 196 Cal.App.4th 57, 69 [“[W]hile section 226.7 is reasonably susceptible of alternative interpretations (one allowing a single premium payment per work day and another allowing up to two), we believe it is more reasonable to construe the statute as permitting up to two premium payments per workday—one for failure to provide one or more meal periods, and another for failure to provide one or more rest periods.”].↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A) [“Every employer shall authorize and permit all employees to take rest periods . . . .”].↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A) [“Authorized rest period time shall be counted, as hours worked, for which there shall be no deduction from wages.”].↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 13(b) [“Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours.”].↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A) [“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.”].↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A).↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A).↥
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1029 [“The Division of Labor Standards Enforcement (DLSE) has so interpreted the phrase as well, construing ‘major fraction thereof’ as applied to a four-hour period to mean any amount of time in excess of two hours—i.e., any fraction greater than half.”], citing Dept. of Industrial Relations, DLSE Opn. Letter No. 1999.02.16 (Opens in new window) (Feb. 16, 1999).↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A) [“[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”].↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A); Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1029 [“Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.”].↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A); Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1029.↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A); Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1029.↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A); Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1029.↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A).↥
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1029 [“The only constraint on timing is that rest breaks must fall in the middle of work periods “insofar as practicable.” Employers are thus subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible.”].↥
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1033 [“An employer is required to authorize and permit the amount of rest break time called for under the wage order for its industry.”].↥
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040, fn. 19 [“If work does continue, the employer will not be liable for premium pay.”].↥
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040 [“The wage orders and governing statute do not countenance an employer’s exerting coercion against the taking of, creating incentives to forgo, or otherwise encouraging the skipping of legally protected breaks.”].↥
Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 260.↥
Meal breaks are sometimes referred to as lunch breaks.↥
Labor Code, § 512.↥
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040.↥
Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, 971 [“An employee is entitled to compensation for meal periods as ‘hours worked’ unless the employee is relieved of all duty during the meal period.”] disapproved on other grounds by Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557; see also Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1036 [citing Bono Enterprises, Inc. with approval].↥
Dept. of Industrial Relations, DLSE Opn. Letter No. 1991.06.03 (Opens in new window) (June 3, 1991); Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1036 [“[T]he wage order’s meal period requirement is satisfied if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period.”].↥
Labor Code, § 512.↥
Labor Code, § 512, subd. (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.”]; Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(A); Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1104 [“Pursuant to IWC wage orders, employees are entitled to an unpaid 30—minute, duty-free meal period after working for five hours and a paid 10—minute rest period per four hours of work.”].↥
Labor Code, § 512, subd. (a) [“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.”]; Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(B).↥
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1042 [“[F]irst meal periods must start after no more than five hours”].↥
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1041 [“We conclude that, absent waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work.”].↥
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040 [“The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.”].↥
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040.↥
Labor Code, § 512, subd. (a); Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(A).↥
Labor Code, § 512.↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(A).↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(A).↥
See Dept. of Industrial Relations, DLSE Opn. Letter No. 2009.06.09 (Opens in new window) (June 9, 2009).↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(A).↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(A).↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(C).↥
Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 3(H).↥
29 U.S.C. § 207(a)(1) [“Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”]; Labor Code, § 510 [“Any work in excess of eight hours in one workday . . . shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee.”].↥
Labor Code, § 510, subd. (a).↥
Labor Code, § 510, subd. (a).↥
Labor Code, § 510, subd. (a).↥
Labor Code, § 500, subd. (a) [“‘Workday’ and ‘day’ mean any consecutive 24-hour period commencing at the same time each calendar day.”].↥
Labor Code, § 500, subd. (b) [“‘Workweek’ and ‘week’ mean any seven consecutive days, starting with the same calendar day each week. ‘Workweek’ is a fixed and regularly recurring period of 168 hours, seven consecutive 24-hour periods.”].↥
Seymore v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361, 368 [“Section 500 undoubtedly affords an employer significant flexibility in the designation of a workweek.”], disapproved on other grounds by Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 845–846.↥
Seymore v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361, 369–370, quoting DLSE, Enforcement Policies and Interpretations Manual (Mar. 2006 rev.) p. 48-2, disapproved on other grounds by Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 845–846.↥
Labor Code, § 510, subd. (a).↥
Huntington Memorial Hospital v. Superior Court (2005) 131 Cal.App.4th 893, 905.↥
Labor Code, § 515, subd. (d)(1) [“For the purpose of computing the overtime rate of compensation required to be paid to a nonexempt full-time salaried employee, the employee’s regular hourly rate shall be 1/40th of the employee’s weekly salary.”]; see also Skyline Homes, Inc. v. Department of Industrial Relations (1985) 165 Cal.App.3d 239, 245 [explaining DLSE method of computing overtime for salaried employees], disapproved on other grounds by Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 572–574. Note that this calculation may differ from the calculation of the regular rate under federal law. (Skyline Homes, Inc. v. Department of Industrial Relations, supra, 165 Cal.App.3d 239, 247.) California employees will usually be entitled to calculate their regular pay under California law because it is more favorable to employees than federal law.↥
Labor Code, § 512, subd. (d)(2) [“Payment of a fixed salary to a nonexempt employee shall be deemed to provide compensation only for the employee’s regular, nonovertime hours, notwithstanding any private agreement to the contrary.”].↥
Walling v. Youngerman-Reynolds Hardwood Co. (1945) 325 U.S. 419, 424 [65 S.Ct. 1242, 1245] [“The regular rate by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments.”]; Huntington Memorial Hospital v. Superior Court (2005) 131 Cal.App.4th 893, 903–904. The Huntington Memorial decision relied on 29 U.S.C. § 207(e), which excludes certain kinds of compensation, such as discretionary bonuses and vacation pay, from the regular rate.↥
Huntington Memorial Hospital v. Superior Court (2005) 131 Cal.App.4th 893, 910 [The bottom line is this: An employer may not engage in a subterfuge or artifice designed to evade the overtime laws.].↥
Labor Code, § 510, subd. (a).↥
See e.g., Cal. Code Regs., tit. 8, § 11040, subd. 2(K) [“‘Hours worked’ means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”]. While this specific regulation applies to professional, technical, clerical, mechanical, and similar occupations, the same definition of “hours worked” appears in regulations governing overtime requirements for most other occupations. (See, e.g., Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 582.)↥
Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 582.↥
29 U.S.C. § 207(a)(1); Labor Code, § 510.↥
Labor Code, § 500, subd. (b); Seymore v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361, 369, disapproved on other grounds by Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 845–846.↥
Seymore v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361, 369 [“[E]mployers may for bona fide business reasons establish an infinite variety of working schedules, including rotating and alternating schedules under which employees start at different times on different days.”], disapproved on other grounds by Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 845–846.↥
Seymore v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361, 365 [“We agree with plaintiffs that it is not permissible for Metson to artificially designate the workweek in such a way as to circumvent the statutory requirement to pay overtime rates for the seventh consecutive day worked in a workweek.”], disapproved on other grounds by Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 845–846. The court in Seymore noted that the employer had established a single work schedule that began a Tuesday, while designating the “workweek” to begin on a Monday. This accomplished nothing apparent in the record other than the elimination of overtime. (Seymore v. Metson Marine, Inc., supra, 194 Cal.App.4th 361, 371.)↥
Huntington Memorial Hospital v. Superior Court (2005) 131 Cal.App.4th 893, 910.↥
Labor Code, § 510, subd. (a).↥
See Labor Code, § 511.↥
Labor Code, § 511; Cal. Code of Regs., tit. 8, §§ 11010–11170, subds. 3(b).↥
See, e.g., Cal. Code of Regs., tit. 8, § 11050, subd. 3(b)(8) [permitting alternative workweek schedules of three 12-hour days without requiring time-and-a-half pay].↥
Cal. Code of Regs., tit. 8, §§ 11010–11170, subds. 3(c)(1).↥
Cal. Code of Regs., tit. 8, §§ 11010–11170, subds. 3(c)(3).↥
Labor Code, § 511.↥
Cal. Code of Regs., tit. 8, §§ 11010–11170, subds. 3(c)(2).↥
Cal. Code of Regs., tit. 8, §§ 11010–11170, subds. 3(c)(6).↥
Cal. Code of Regs., tit. 8, §§ 11010–11170, subds. 3(c)(8).↥
Labor Code, § 511, subd. (b).↥
Labor Code, § 511, subd. (b).↥
Labor Code, § 1102.5, subd. (a); Health & Saf. Code, §§ 1596.881, 1596.882.↥
Labor Code, § 1102.5, subd. (a).↥
Labor Code, § 1102.5, subd. (b).↥
Labor Code, § 1102.5, subd. (c) [“An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.”].↥
Gov. Code, § 12940, subd. (m) [“For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”]; Labor Code, § 1197.5.↥
Labor Code, § 98, subd. (a); Post v. Palo/Haklar & Associates (2000) 23 Cal.4th 942, 946 [“[I]f an employer fails to pay wages in the amount, time, or manner required by contract or statute, the employee may seek administrative relief by filing a wage claim with the commissioner or, in the alternative, may seek judicial relief by filing an ordinary civil action for breach of contract and/or for the wages prescribed by statute.”].↥
Labor Code, § 98.6, subd. (a).↥
Labor Code, § 98.6, subd. (a).↥
Labor Code, § 232, subd. (c) [“No employer may do any of the following: . . . (c) .Discharge, formally discipline, or otherwise discriminate against an employee who discloses the amount of his or her wages.”].↥
Labor Code, § 6310, subd. (a).↥
Labor Code, § 6310, subd. (a).↥
Labor Code, § 6311.↥
Labor Code, §§ 1102.5, 6399.7.↥
Labor Code, § 232.5.↥
Labor Code, § 232.5, subd. (c).↥
Gov. Code, § 12940, subd. (a), (m); Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 [“In addition to a general prohibition against unlawful employment discrimination based on disability, FEHA provides an independent cause of action for an employer’s failure to provide a reasonable accommodation for an applicant’s or employee’s known disability.”].↥
Cal. Code Regs., tit. 2, §§ 11065, subd. (p)(2)(M), 11068, subd. (c).↥
Gov. Code, § 12940, subd. (l).↥
Labor Code, §§ 1041–1044.↥
Labor Code, § 1025–1028.↥
Labor Code, § 132a.↥
Raven v. Oakland Unified Sch. Dist. (1989) 213 Cal.App.3d 1347, 1364.↥
Judson Steel Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658, 666–667.↥