Home: Smith & Lo, California Work LawyersHome About Smith & Lo, California Work LawyersAbout Answers: Smith & Lo, California Work LawyersAnswers Contact Smith & Lo, California Work LawyersContact

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 labor law violations in California.

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.

Need a Lawyer?

Tell our lawyers your side of the story and find out how we can help. Our consultations are free and confidential for potential clients.

Protect Your Rights

If something doesn't seem right at work, tell our lawyers about it. Our consultations are free and confidential for potential clients.

Contents

Violation #1

They Misclassify Employees as Independent Contractors

Independent Contractor vs. Employee under California Law

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. So California courts have developed a more specific test: An employment relationship will be found when the business has a right to control the manner and means of accomplishing the result desired.9 This is sometimes referred to as the manner and means test.

The manner and means test is the most commonly used under California law, including for the purposes of:

  • California’s wage and hour laws,10
  • Unemployment insurance benefits,11
  • Workers’ compensation insurance,12
  • State disability insurance,13 and
  • State income tax withholding.14

Because of its widespread use, it is important for all California businesses to fully understand the manner and means test.

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.15 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.16

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.17 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.18

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.19 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.20

Secondary Factors to Consider

It is often difficult to know who has the right to control the manner and means of a particular job.21 Courts will therefore consider a series of secondary factors to make a final determination:22

  • 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.23
  • 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.24
  • 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.25
  • 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.26
  • 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.27
  • 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.28
  • 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.29
  • 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.30
  • 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.31
  • 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.32

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.33

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.34 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.35 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.36

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.37

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.38 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.39

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.40

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.41 Likewise, people who work for a person who is required to obtain a contractors license are presumed to be employees.42

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.43

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.44

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.45 Workers’ compensation claims in California are administered by the Division of Workers’ Compensation (the DWC).46

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.47 But the California Supreme Court has noted that the workers’ compensation law should be interpreted liberally in favor of awarding compensation.48 As such, some courts will consider other factors when reviewing cases.49

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).50

These factors tend to favor a finding that an employment relationship exists in workers’ compensation cases.51 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 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

Executive, professional, and administrative exempt employees

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.52
  • White Collar Duties. The employee’s primary duties must consist of administrative, executive, or professional tasks.53
  • Independent Judgment. The employee’s job duties must involve the use of discretion and independent judgment.54

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).55 The salary must be at least at least twice the state minimum wage for full-time employment.56

A salary, for these purposes, is an unvarying minimum amount of pay.57 The employee’s pay must be predetermined, and cannot change based on the number of hours worked or the quality of the work performed.58

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.59 But the employee would no longer be considered “salaried” if the employer deducted for partial-day absences.60

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).61

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.62

As of January 1, 2018, there are two possible amounts for an employee’s minimum wage. Employees that work for an employer with 25 or fewer employees are entitled to a minimum wage of $10.50 per hour.63 Employees that work for an employer with more than 25 employees are entitled to be paid $11.00 per hour.64

So, to meet the minimum salary requirement, the applicable minimum wage must be multiple by two, and then multiplied by 40 hours per week. That gives us a weekly salary that is twice the minimum wage.

If the applicable minimum wage is $10.50, the minimum salary is $840.00 per week (or $3,640.00 per month). If the applicable minimum wage is $11.00, the minimum salary is $880.00 per week (or $3,813.33 per month).

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.65 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.66

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.67

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.68

Work relates to management or general business operations when the employee assists in running the business.69

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.70

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.71

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.72

Executive employees receive little direct supervision.

Professional Employees

There are three types of professional employees that can qualify for exemptions:

  • Licensed Professionals. People who are licensed or certified by the State of California and are primarily engaged in the practice of: law, medicine, dentistry, optometry, architecture, engineering, teaching,73 or accounting.74
  • Learned Professionals. People who have advanced knowledge in a field of science or learning that is customarily acquired by prolonged and specialized study.75
  • Creative Professionals. People who focus on invention, imagination, originality, or talent in a recognized field that is artistic or creative.76

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.77

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.78 An employee exercises discretion and independent judgment when the employee makes and implements important choices after considering competing courses of action.79

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.80

Violation #3

They Fail to Fully Pay Their Employees on Time

Late and Unpaid Wages Law in California

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.81 An employer must establish an employee’s regular paydays before wages are first paid.82

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.83

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:84

  • 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.85

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.86

Overtime Wages

Wages for overtime earned during a work period must be paid not later than the regular payday for the next work period.87

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.88 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.89

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.90

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.91

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).92

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

Employee receiving a wage paycheck

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.93

There are, however, limited exceptions to this rule, depending on the industry in which the worker is employed.94

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.95

Employees who quit without giving such notice must be paid their final wages within 72 hours after their last day of work.96

Vacation Pay

California law regards a paid vacation as a form of wages.97 Paid vacations are compensation for labor the employee performs, but the payment is delayed until the employee takes the vacation.98

Employers are not required to offer vacation pay to their employees,99 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.100 The right to a paid vacation vests as the employee performs the work that entitles the employee to a paid vacation.101

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.102

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.103

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.104

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.105

The penalty for late payment of wages advances the public policy of assuring that employees are paid promptly for their work.106 It incentivizes employers to pay wages in a timely manner.107

Calculating the Penalty

The waiting time penalty consists of a full day of wages for each day that payment is delayed.108 The penalty continues to accrue for as much as 30 days after discharge, depending on when payment is fully satisfied.109

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.110

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.111

When a Failure to Pay is “Willful”

A failure to pay wages on time is willful if the failure is intentional.112 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.113

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.114

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

Employee taking legally required rest break.

California employees who are considered non-exempt115 have a legal right to receive meal breaks and rest periods.116 And even most employees who are considered exempt still have a right to take meal breaks (but not rest periods).117

The number of breaks depends on the length of the employee’s shift. A rough guide can be found on the following chart:118

Meal & Rest Break Chart
Shift LengthPaid 10-Minute Rest BreaksUnpaid 30-Minute Meal Breaks
Less than 3.5 Hours00
3.6 – 5 Hours10
5.1 – 6 Hours11
6.1 – 10 Hours21
10.1 – 14 Hours32
14+ HoursAt Least 42

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.119

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 periods120 and an additional one hour per workday for their missed meal breaks.121

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.122

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.123 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.124

Employers are required to provide suitable resting facilities in an area separate from the toilet rooms during work hours.125

The number of rest periods an employee must take will depend on the length of their shift.126

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.127

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.128 A major fraction of a four-hour period, for these purposes, is more than two hours.129

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.130
  • 3.5 Hours or More. An employee who works three-and-a-half hours or more is entitled to one ten-minute rest period.131
  • 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.132
  • 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.133
  • And so on… An employee is entitled to another ten-minute rest period every time they pass another four-hour milestone.134

California’s regulations require rest breaks to fall in the middle of work periods “insofar as practicable.”135 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.136

An employer is required to authorize and permit the amount of rest period time to which an employee is entitled.137 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.138 But employers may not pressure or encourage their employees to skip rest periods.139

Finally, California employers may not require their employees to remain on-site or on-call during rest periods.140 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 breaks141 when they work shifts that exceed a certain number of hours.142

A meal break is an uninterrupted 30-minute period during which employees are free to attend to their personal business.143 Meal breaks are usually unpaid, unless the employer fails to relieve the employee of all duties.144

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.145

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.146
  • More than 5 Hours. An employee who works more than five hours is entitled to one 30-minute meal break.147
  • More than 10 Hours. An employee who works more than ten hours is entitled to a second 30-minute meal break.148

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.149

If an employee is entitled to a second meal period, it must start before the end of the employee’s tenth hour of work.150

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.151

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.152

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.153 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.154

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.155

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.156

On-duty meal breaks are only allowed when:

  • The nature of the work prevents an employee from being relieved of all duty,157 and
  • The employee and employer agree in writing to an on-the-job, paid meal period.158

The written agreement must state that the employee can revoke it at any time.159

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.160

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.161

Violation #6

They Fail to Track or Pay Overtime

Clock showing California employee working overtime

Both federal and California law require nonexempt employees to be paid overtime when the employee works more than 40 hours in a workweek.162 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.163

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.164 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.165

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.166 A workweek is a period of seven consecutive days beginning on the same calendar day each week.167

Employers are responsible for designating the start of the workweek.168 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.169

The Employee’s “Regular Rate” of Pay

Overtime rates are based on the employee’s regular rate of pay.170 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.171

The regular rate of a nonexempt salaried employee who regularly works 40 hours per week is computed by dividing the weekly salary by 40.172 Thus, a nonexempt employee’s salary only compensates them for regular, non-overtime hours.173

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.174

Importantly, employers may not designate rates of pay with the intent to evade overtime laws.175 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.176

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.177

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.178

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.179 The law gives employers flexibility to designate a workweek that meets their needs.180

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.181

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.182 Employers cannot structure workweeks in a way that is meant to avoid paying overtime.183

Alternative Workweeks

Nonexempt employees in California usually have a right to earn overtime by working more than 8 hours in a workday.184 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.185

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.186 Some industries, like health care, can adopt alternative workweeks that differ slightly from this model.187

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.188
  • 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.189
  • Employee Vote. Two-thirds of the employees must approve the alternative workweek schedule by a secret ballot.190 The election must be held during regular working hours at the employees’ work site.191
  • Reporting. The results of the secret ballot election must be reported by the employer to the Division of Labor Standards Enforcement within 30 days of the results becoming final.192

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.193

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.194

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.195

Violation #7

They Retaliate against Employees Who Challenge Legal Violations

Female Senior Employee Protected Against Retaliation in Wrongful Termination Case

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.196

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.197

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.198

Finally, employers cannot fire or punish employees for refusing to participate in unlawful activities.199

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.200

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.201 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.202

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.203

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.204

Complaining About Unlawful Work Conditions

Employers are prohibited from firing or punishing employees who complain about workplace safety issues.205 Employers are also prohibited from firing or punishing employees who reporting an issue of employee safety or health to a government agency.206 This means that employees cannot be fired for filing an OSHA complaint.

Additionally, employers usually cannot fire or punish an employee who refuses to perform work that would violate any occupational safety or health standard.207 And employees are protected if they have to testify in a court proceeding about dangerous work conditions.208

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.209

In keeping with this right, employers are prohibited from terminating employees for disclosing information about their working conditions to other people.210 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.211
  • They may also have a right to time off of work, as an accommodation for their disability.212
  • Religious employees may have a right to an accommodation of their religious practices and observances.213
  • Employees who have difficulty reading may have a right to a reasonable accommodation.214
  • Employees with substance abuse problems may have a right to a reasonable accommodation for them to participate in an alcohol or drug rehabilitation program.215

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.”216 California courts have interpreted this policy to protect employees from retaliation for filing a workers’ compensation claim.217

The broad nature of that policy favors employees who are fired or treated unfairly as the result of a job-related injury.218 In general, an employer commits wrongful termination if they fire an employee in retaliation for filing a workers’ compensation claim.

Need a Lawyer?

Tell our lawyers your side of the story and find out how we can help. Our consultations are free and confidential for potential clients.

Protect Your Rights

If something doesn't seem right at work, tell our lawyers about it. Our consultations are free and confidential for potential clients.


  1. 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.”].

    Footnote 1
  2. Labor Code, § 3351; see also Cal. Code Regs., tit. 8, § 11150, subd. (2)(F) [“‘Employee’ means any person employed by an employer.”].

    Footnote 2
  3. 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.”].

    Footnote 3
  4. 29 U.S.C. § 207; Labor Code, § 510, subd. (a).

    Footnote 4
  5. See Labor Code, § 512, subd. (a); Cal. Code of Regs., tit. 8, §§ 11010–11170 [wage orders of the California Industrial Welfare Commission].

    Footnote 5
  6. Labor Code, § 1182.12, subds. (b).

    Footnote 6
  7. 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.”].

    Footnote 7
  8. Labor Code, § 18 [“‘Person’ means any person, association, organization, partnership, business trust, limited liability company, or corporation.”].

    Footnote 8
  9. 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.”].

    Footnote 9
  10. 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].

    Footnote 10
  11. 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.”].

    Footnote 11
  12. See, e.g., S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350.

    Footnote 12
  13. 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].

    Footnote 13
  14. See Employment Development Department, Form DE 38: Employment Determination Guide (2016), available here.

    Footnote 14
  15. 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 . . . .”.

    Footnote 15
  16. Tieberg v. Unemployment Ins. Appeals Board (1970) 2 Cal.3d 943, 946–947.

    Footnote 16
  17. 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.”].

    Footnote 17
  18. Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 535.

    Footnote 18
  19. 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.”].

    Footnote 19
  20. 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.”].

    Footnote 20
  21. 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.”].

    Footnote 21
  22. Arnold v. Mutual of Omaha Ins. Co. (2011) 202 Cal.App.4th 580, 584.

    Footnote 22
  23. 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”].

    Footnote 23
  24. 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.”].

    Footnote 24
  25. 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”].

    Footnote 25
  26. 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”].

    Footnote 26
  27. 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”].

    Footnote 27
  28. 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”].

    Footnote 28
  29. 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”].

    Footnote 29
  30. 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”].

    Footnote 30
  31. 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.”].

    Footnote 31
  32. 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”].

    Footnote 32
  33. 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.”].

    Footnote 33
  34. 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'”].

    Footnote 34
  35. 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.”].

    Footnote 35
  36. 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.'”].

    Footnote 36
  37. S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349.

    Footnote 37
  38. 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.”].

    Footnote 38
  39. Yellow Cab Coop. v. Workers’ Comp. Appeals Bd. (1991) 226 Cal.App.3d 1288, 1295.

    Footnote 39
  40. Yellow Cab Coop. v. Workers’ Comp. Appeals Bd. (1991) 226 Cal.App.3d 1288, 1295.

    Footnote 40
  41. Labor Code, § 2750.5; see Bus. & Prof. Code, §§ 7000–7191 [contractor licensing].

    Footnote 41
  42. 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.”].

    Footnote 42
  43. Labor Code, § 2750.5.

    Footnote 43
  44. 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”].

    Footnote 44
  45. See Labor Code, § 3201; Cal. Const., art. XIV, § 4.

    Footnote 45
  46. Labor Code, § 3205.

    Footnote 46
  47. See, e.g., Johnson v. Workmen’s Comp. Appeals Bd. (1974) 41 Cal.App.3d 318, 321.

    Footnote 47
  48. 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.”].

    Footnote 48
  49. 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.”].

    Footnote 49
  50. 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.”].

    Footnote 50
  51. Greydanus v. Industrial Accident Comm’n (1965) 63 Cal.2d 490, 493.

    Footnote 51
  52. 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”].

    Footnote 52
  53. 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.”].

    Footnote 53
  54. Labor Code, § 515, subd. (a) [requiring employees to “customarily and regularly exercises discretion and independent judgment in performing” the duties of their job].

    Footnote 54
  55. Labor Code, § 515, subd. (a); Cal. Code of Regs., tit. 8, § 11040.

    Footnote 55
  56. Labor Code, § 515, subds. (a), (c).

    Footnote 56
  57. 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.

    Footnote 57
  58. 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).

    Footnote 58
  59. Conley v. Pacific Gas and Elec. Co. (2005) 131 Cal.App.4th 260, 267; 29 C.F.R. § 541.602(b)(1).

    Footnote 59
  60. 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.”].

    Footnote 60
  61. Negri v. Koning & Associates (2013) 216 Cal.App.4th 392, 400.

    Footnote 61
  62. Labor Code, § 515, subds. (a), (c).

    Footnote 62
  63. Labor Code, § 1182.12, subds. (a).

    Footnote 63
  64. Labor Code, § 1182.12, subds. (b)(1).

    Footnote 64
  65. 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.”].

    Footnote 65
  66. 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.”].

    Footnote 66
  67. Labor Code, § 515, subd. (e) [“For the purposes of this section, ‘primarily’ means more than one-half of the employee’s worktime.”].

    Footnote 67
  68. 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.)

    Footnote 68
  69. 29 C.F.R. § 541.201(a).

    Footnote 69
  70. 29 C.F.R. § 541.201(b).

    Footnote 70
  71. Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. (1)(A)(1) [defining executive employee].

    Footnote 71
  72. 29 C.F.R. § 541.102.

    Footnote 72
  73. “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).

    Footnote 73
  74. Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. (3)(A).

    Footnote 74
  75. Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. (3)(B).

    Footnote 75
  76. 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].

    Footnote 76
  77. Labor Code, § 515, subd. (f)(1).

    Footnote 77
  78. Labor Code, § 515, subd. (a).

    Footnote 78
  79. 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.”].

    Footnote 79
  80. 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.”].

    Footnote 80
  81. Labor Code, 204, subd. (a).

    Footnote 81
  82. 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.”].

    Footnote 82
  83. 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.”].

    Footnote 83
  84. Labor Code, 204, subd. (a)

    Footnote 84
  85. 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.

    Footnote 85
  86. Labor Code, §§ 204, subd. (d), 204b.

    Footnote 86
  87. Labor Code, § 204, subd. (b).

    Footnote 87
  88. Labor Code, § 515, subd. (a); Cal. Code of Regs., tit. 8, § 11040

    Footnote 88
  89. Labor Code, § 204, subd. (a).

    Footnote 89
  90. Labor Code, § 204.1.

    Footnote 90
  91. Labor Code, § 205.5.

    Footnote 91
  92. 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”].

    Footnote 92
  93. 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.”].

    Footnote 93
  94. 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).

    Footnote 94
  95. 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.”].

    Footnote 95
  96. Labor Code, § 202, subd. (a).

    Footnote 96
  97. 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.”].

    Footnote 97
  98. Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 780 [“[V]acation pay is simply a form of deferred compensation.”].

    Footnote 98
  99. 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”].

    Footnote 99
  100. Labor Code § 227.3.

    Footnote 100
  101. 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.”]

    Footnote 101
  102. 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.”].

    Footnote 102
  103. Labor Code, § 227.2 [“[A]n employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination.”].

    Footnote 103
  104. Labor Code, § 203.

    Footnote 104
  105. 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.”].

    Footnote 105
  106. Mamika v. Barca (1998) 68 Cal.App.4th 487, 491–492.

    Footnote 106
  107. 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.”].

    Footnote 107
  108. 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.”].

    Footnote 108
  109. Labor Code, § 203.

    Footnote 109
  110. 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.”].

    Footnote 110
  111. Drumm v. Morningstar, Inc. (N.D. Cal. 2010) 695 F.Supp.2d 1014, 1019 [approving jury instruction specifying this manner of calculation].

    Footnote 111
  112. 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.”].

    Footnote 112
  113. 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.”].

    Footnote 113
  114. 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.'”].

    Footnote 114
  115. 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.

    Footnote 115
  116. See Labor Code, § 512, subd. (a); Cal. Code of Regs., tit. 8, §§ 11010–11170 [wage orders of the California Industrial Welfare Commission].

    Footnote 116
  117. 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”].

    Footnote 117
  118. 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.”].

    Footnote 118
  119. See, e.g., Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(B).

    Footnote 119
  120. 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.”].

    Footnote 120
  121. 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.”].

    Footnote 121
  122. 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.”].

    Footnote 122
  123. Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A) [“Every employer shall authorize and permit all employees to take rest periods . . . .”].

    Footnote 123
  124. 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.”].

    Footnote 124
  125. 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.”].

    Footnote 125
  126. 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.”].

    Footnote 126
  127. Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A).

    Footnote 127
  128. Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A).

    Footnote 128
  129. 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 (Feb. 16, 1999).

    Footnote 129
  130. 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”].

    Footnote 130
  131. 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.”].

    Footnote 131
  132. Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A); Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1029.

    Footnote 132
  133. Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A); Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1029.

    Footnote 133
  134. Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A); Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1029.

    Footnote 134
  135. Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. 12(A).

    Footnote 135
  136. 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.”].

    Footnote 136
  137. 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.”].

    Footnote 137
  138. 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.”].

    Footnote 138
  139. 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.”].

    Footnote 139
  140. Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 260.

    Footnote 140
  141. Meal breaks are sometimes referred to as lunch breaks.

    Footnote 141
  142. Labor Code, § 512.

    Footnote 142
  143. Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040.

    Footnote 143
  144. 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].

    Footnote 144
  145. Dept. of Industrial Relations, DLSE Opn. Letter No. 1991.06.03 (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.”].

    Footnote 145
  146. Labor Code, § 512.

    Footnote 146
  147. 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.”].

    Footnote 147
  148. 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).

    Footnote 148
  149. Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1042 [“[F]irst meal periods must start after no more than five hours”].

    Footnote 149
  150. 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.”].

    Footnote 150
  151. 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.”].

    Footnote 151
  152. Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040.

    Footnote 152
  153. Labor Code, § 512, subd. (a); Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(A).

    Footnote 153
  154. Labor Code, § 512.

    Footnote 154
  155. Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(A).

    Footnote 155
  156. Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(A).

    Footnote 156
  157. See Dept. of Industrial Relations, DLSE Opn. Letter No. 2009.06.09 (June 9, 2009).

    Footnote 157
  158. Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(A).

    Footnote 158
  159. Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(A).

    Footnote 159
  160. Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 11(C).

    Footnote 160
  161. Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. 3(H).

    Footnote 161
  162. 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.”].

    Footnote 162
  163. Labor Code, § 510, subd. (a).

    Footnote 163
  164. Labor Code, § 510, subd. (a).

    Footnote 164
  165. Labor Code, § 510, subd. (a).

    Footnote 165
  166. Labor Code, § 500, subd. (a) [“‘Workday’ and ‘day’ mean any consecutive 24-hour period commencing at the same time each calendar day.”].

    Footnote 166
  167. 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.”].

    Footnote 167
  168. 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.

    Footnote 168
  169. 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.

    Footnote 169
  170. Labor Code, § 510, subd. (a).

    Footnote 170
  171. Huntington Memorial Hospital v. Superior Court (2005) 131 Cal.App.4th 893, 905.

    Footnote 171
  172. 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.

    Footnote 172
  173. 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.”].

    Footnote 173
  174. 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.

    Footnote 174
  175. 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.].

    Footnote 175
  176. Labor Code, § 510, subd. (a).

    Footnote 176
  177. 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.)

    Footnote 177
  178. Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 582.

    Footnote 178
  179. 29 U.S.C. § 207(a)(1); Labor Code, § 510.

    Footnote 179
  180. 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.

    Footnote 180
  181. 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.

    Footnote 181
  182. 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.)

    Footnote 182
  183. Huntington Memorial Hospital v. Superior Court (2005) 131 Cal.App.4th 893, 910.

    Footnote 183
  184. Labor Code, § 510, subd. (a).

    Footnote 184
  185. See Labor Code, § 511.

    Footnote 185
  186. Labor Code, § 511; Cal. Code of Regs., tit. 8, §§ 11010–11170, subds. 3(b).

    Footnote 186
  187. 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].

    Footnote 187
  188. Cal. Code of Regs., tit. 8, §§ 11010–11170, subds. 3(c)(1).

    Footnote 188
  189. Cal. Code of Regs., tit. 8, §§ 11010–11170, subds. 3(c)(3).

    Footnote 189
  190. Labor Code, § 511.

    Footnote 190
  191. Cal. Code of Regs., tit. 8, §§ 11010–11170, subds. 3(c)(2).

    Footnote 191
  192. Cal. Code of Regs., tit. 8, §§ 11010–11170, subds. 3(c)(6).

    Footnote 192
  193. Cal. Code of Regs., tit. 8, §§ 11010–11170, subds. 3(c)(8).

    Footnote 193
  194. Labor Code, § 511, subd. (b).

    Footnote 194
  195. Labor Code, § 511, subd. (b).

    Footnote 195
  196. Labor Code, § 1102.5, subd. (a); Health & Saf. Code, §§ 1596.881, 1596.882.

    Footnote 196
  197. Labor Code, § 1102.5, subd. (a).

    Footnote 197
  198. Labor Code, § 1102.5, subd. (b).

    Footnote 198
  199. 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.”].

    Footnote 199
  200. 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.

    Footnote 200
  201. 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.”].

    Footnote 201
  202. Labor Code, § 98.6, subd. (a).

    Footnote 202
  203. Labor Code, § 98.6, subd. (a).

    Footnote 203
  204. 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.”].

    Footnote 204
  205. Labor Code, § 6310, subd. (a).

    Footnote 205
  206. Labor Code, § 6310, subd. (a).

    Footnote 206
  207. Labor Code, § 6311.

    Footnote 207
  208. Labor Code, §§ 1102.5, 6399.7.

    Footnote 208
  209. Labor Code, § 232.5.

    Footnote 209
  210. Labor Code, § 232.5, subd. (c).

    Footnote 210
  211. 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.”].

    Footnote 211
  212. Cal. Code Regs., tit. 2, §§ 11065, subd. (p)(2)(M), 11068, subd. (c).

    Footnote 212
  213. Gov. Code, § 12940, subd. (l).

    Footnote 213
  214. Labor Code, §§ 1041–1044.

    Footnote 214
  215. Labor Code, § 1025–1028.

    Footnote 215
  216. Labor Code, § 132a.

    Footnote 216
  217. Raven v. Oakland Unified Sch. Dist. (1989) 213 Cal.App.3d 1347, 1364.

    Footnote 217
  218. Judson Steel Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658, 666–667.

    Footnote 218
Navigate to the Top