In the state of California, the majority of workers, with a few exceptions, have to be paid at least minimum wage. As of January 1, 2018, minimum wage in California is $11.00 per hour. Minimum wage is set to increase to $12.00 per hour on January 1, 2019. Employees can’t negotiate or agree to be paid less than minimum wage. Restaurant workers and other tipped employees still must be paid minimum wage before their tips are factored in. Employers can’t use a worker’s tips as a credit towards their minimum wage.
Tips & Tip Pooling
As stated above, employers have to pay workers who earn tips at least minimum wage without factoring in their tips. It is also illegal for employers to deduct wages and credit card processing fees from their employee’s tips.
Employers cannot keep or share any portion of a tip that is intended for one of their employees. Any tips left behind by customers becomes the property of the employee or employees who provided the services. This means employers can still enforce employee tipping pools, but managers, owners, and supervisors are ineligible to share in that tip pool.
Overtime
California labor law prevents nonexempt employees from being employed for more than 8 hours a day or 40 hours a week without receiving overtime pay. Overtime pay is worth time-and-a-half for the extra hours the non-exempt employee works. Employees who exceed 12 hours in a work day or exceed 8 hours on their seventh consecutive day of work, have to be paid double their standard rate of pay.
Overtime wage laws apply to employees who are paid hourly, on salary, or on commission. Unauthorized overtime must also be paid by employers, even if the employer did not know that the employee was working overtime. The right to overtime compensation cannot be waived by employees.
Administrative and executive employees, outside salespeople, certain drivers, and certain employees in computer software are exempt from overtime pay.
Overtime Misclassification
Some employers will try to avoid paying their employees overtime by misclassifying them as exempt workers. Overtime exemption is based on the employee's work duties and not on their job title. Just because an employer gives a person an administrative title does not make the employee exempt from overtime laws. Employees are entitled to have discretion and authority in their role and must meet certain tests if they want to be exempt from overtime pay.
Meal & Rest Breaks
California employees cannot work for more than 5 hours in a shift without taking at least a 30 minute meal break. Employers and employees can agree to waive the break if the employee will be working six hours or less. If an employee works more than 10 hours in a workday, they must take a second meal break that is at least 30 minutes. If an employee is working 12 hours or less, they can agree to waive the second meal period, as long as they have not waived the first meal period.
Independent Contractors
There is no set definition of an “independent contractor” in California. How an employee is classified is generally based on the company and the circumstances of the worker being hired. Employers sometimes misclassify hourly workers as independent contractors to avoid payroll taxes, minimum wage laws, and other labor laws. Although employees are protected by wage and hour laws, as well as anti-discrimination and retaliation laws, independent contractors do not share these protections.
Do you think your employer has misclassified your employment status? Has your employer failed to pay your wages? Call (888) 796-4010 to get help from our Hollister employment law attorney. We have been helping employees protect their rights for more than 20 years. Let us fight for you today.