Federal laws exist to ensure employees are treated fairly. California, generally speaking, has even more stringent laws to protect employee’s rights and to prevent employers from exploiting their workers.

Wage and Hour

Misclassification (Cal. Lab. Code § 226.8 and other laws) 

Employers have a financial incentive to misclassify non-exempt employees as independent contractors because this enables them not only to avoid paying unemployment insurance but also to disregard the wage and hour laws afforded to employees, such as minimum wage and the right to meal and rest breaks. Whether you have been misclassified is a factual inquiry regarding consideration of several factors. A few of these factors include: the extent to which the services rendered are an integral part of the principal’s business; the permanency of the relationship; the amount of the worker’s investment in facilities and equipment; the nature and degree of control by the principal; and the worker’s opportunities for profit and loss. Generally speaking, the most important factor is the principal’s right to control. If you are an independent contractor but you are being told when to show up for work, and how to perform your job, there is a possibility you have misclassified. 

Meal and Rest Breaks  (Cal. Lab. Code § 226.7 and other laws)

Generally speaking, you are entitled to take an uninterrupted 30-minute meal break before the fifth hour of work and a second uninterrupted 30-minute meal break if you work a shift of ten hours or longer. You’re also entitled to a paid 10-minute rest break during the first 3 ½ hours of your shift, a second paid 10-minute rest break if you work a shift of 6 hours or longer, and a third paid 10-minute rest break if you work a shift of 10 hours or longer. If your employer is taking action – such as not advising you of these rights, pressuring you to work non-stop, denying your requests, or simply giving you too much work to do – that prevents you from taking these breaks, you’re entitled to one hour of compensation at your regular rate of pay for each violation. 

Recovery Periods  (Cal. Lab. Code § 226.7 and other laws)

If you work outside, your employer is required to provide you with recovery periods, in addition to your meal and rest breaks. These recovery periods are necessary to permit you to “cool down” to prevent heat illness. Employers are required to pay one additional hour of pay at the employee’s regular rate of compensation for each workday that a recovery period is not provided.

Uniforms and Other Employment-Related Expenses  (Cal. Lab. Code § 2802 and other laws)

Employers cannot pass on the costs of doing business onto their employees. Thus, it is unlawful for an employer make to its employees purchase uniforms that cannot also be regularly used outside of work (e.g., articles of clothing with company logos, aprons, protective gear, ankle-high boots). Further, employers cannot require employees to pay for expenses that are incurred in the discharge of their job duties, such as travel-related expenses (gas and mileage), cellular phone usage, and other tools.

Overtime (Cal. Lab. Code § 510 and other laws) 

Employers in California are required to pay overtime at 1 ½ times your regular rate of pay for all hours worked in excess of 8 hours per day or 40 hours per week. California employers are also required to pay 2 times your regular rate of pay for all hours worked in excess of 12 hours per day. 

There are other more complicated aspects to overtime that employers must comply with. For instance, overtime must be paid based on the proper calculation of your regular rate of pay, which is not necessarily the same thing as your hourly rate of pay. For instance, employers can cheat you out of overtime wages by failing to include compensation such as non-discretionary bonuses, free meals, or other fringe benefits, in calculating your regular rate of pay. If you are paid at two different rates, the employer must also calculate your overtime rate based on the weighted average of these different rates. 

Minimum Wage  (Cal. Lab. Code §§ 1194, 1197, and other laws)

Minimum wage in California is currently $9 per hour. Even if you are currently being paid $9 per hour, employers can still be cheating you out of minimum wage by making you work through your meal or rest breaks or off-the-clock (working while not punched in). 

Wage Statements  (Cal. Lab. Code § 226 and other laws)

Employers are required to provide you with wage statements that accurately state, among other things, the legal name of your employer, all hours worked and all applicable hourly rates. This is important so you know whether you’re being paid all the wages that are owed and due to you. 

Tips and Tip Pooling  (Cal. Lab. Code § 351 and other laws)

Employees in California are entitled to receive their tips not later than the next regular payday following the date the patron authorized the credit card payment. Moreover, the employer must pay the employee the full amount of the tip; any deductions for credit card processing fees are illegal. An employer may require you to share tips with your co-workers (tip pooling) but it cannot permit any owners, managers, or supervisors to share in these tips.

Illegal Time Rounding Practices (Causing unpaid regular, minimum, and overtime wages)

Employers in California are permitted to round the actual time worked, but they must do so in a fair and neutral manner. For example, if your employer regularly requires you to punch in a few minutes early for work and rounds this time forward to the start of your shift, but also makes you work your entire shift (does not permit you to punch-out early) your employer may be illegally rounding your time. 

Vacation Pay  (Cal. Lab. Code § 227.3 and other laws)

Although an employer is not legally obligated to provide its employees with either paid or unpaid vacation time, if an employer chooses to do so, it must comply with several California laws. Specifically, earned vacation time is considered wages, and vacation time is earned as labor is performed. For example, if an employee is entitled to two weeks (10 work days) of vacation per year, after six months of work he or she will have earned five days of vacation. Vacation pay accrues as it is earned, and cannot be forfeited, even upon termination of employment. Upon termination of employment all earned and unused vacation must be paid to the employee at his or her final rate of pay. 

Reporting Time Pay  (Section 5 of the applicable IWC Wage Order and other laws)

With the exception of limited circumstances (such as natural disasters), and to guarantee some compensation for employees who report to their job expecting to work a specified number of hours but are deprived of that amount of work by the employer, employees are entitled to be paid reporting time pay. For instance, each workday an employee is required to report to work but is not put to work, or is furnished with less than half of his or her usual or scheduled day’s work, the employee must be paid for half the usual or scheduled day’s work, but in no event for less than two hours, at the employee’s regular rate of pay.

Failure to Receive Wages When Due  (Cal. Lab. Code §§ 201-203 and other laws)

Employees are entitled to be paid all the wages owed and due to them at the time their employment ends.  If the employee is terminated, or voluntarily quits and provides 72 hours notice of the intent to quit, the employer must provide the final paycheck at the time of termination/time of quitting. If the employee voluntarily quits but does not provide 72 hours’ notice, the employer must provide the final paycheck for all wages within 72 hours of the time the employee quits.

Suitable Seating (Section 14 of the applicable IWC Wage Order and other laws)

California law requires employers to provide suitable seating to employees when the nature of the work reasonably permits the use of seats. In other words, if you work in a consumer-facing job (such as a cashier) and could reasonably perform your duties while seated, you have the right to do so, and your employer must provide you with a seat.

Warn Act 

The Federal Worker Adjustment and Retraining Notification Act (“WARN ACT”) (29 U.S. Code § 2101 et seq.) and the California WARN (Cal. Lab. Code §§ 1400 et seq.) offer protection to workers, their families, and communities by requiring employers to provide notice 60 days in advance of covered plant closings and mass layoffs. This notice must be provided to either affected workers or their representatives (e.g., a labor union), to the state dislocated worker unit, and to the appropriate unit of local government.

Coverage

Employers are covered by WARN if they have 100 or more employees, excluding employees who have worked less than 6 months in the last 12 months, and not counting employees who work an average of less than 20 hours a week. Federal, State, and local government entities that provide public services are not covered by WARN.

California employers are covered by the California WARN if they have 75 or more full or part-time employees.

What Triggers Notice

Plant Closing: A covered employer must give notice if an employment site will be shut down, and the shutdown will result in an employment loss for 50 or more employees during any 30-day period.

Mass Layoff: A covered employer must give notice if there is to be a mass layoff which does not result from a plant closing, but which will result in an employment loss at the employment site during any 30-day period for 500 or more employees, or for 50-499 employees, if they make up at least 33% of the employer’s active workforce.

Any plant closing or mass layoff occurring as part of, or contemporaneously with, a business sale must be preceded by WARN notice. The seller is responsible for providing such notice for a plant closing or mass layoff that occurs before or on the effective date of the sale. After that, the buyer is responsible for providing the required WARN notice.

Penalties

A covered employer that violates the WARN notice requirement can be liable to each affected employee for an amount equal to back pay and benefits for the period of violation up to 60 days, as well as civil penalties. 

Equal and Fair Pay Class Actions

California Fair Pay Act, California Labor Code § 1197.5

Empirical data shows that women earn only 84 cents for every dollar their male counterparts take home, and that there is also a pay gap for people of color. 

To help rectify this injustice, California’s Fair Pay Act, California Labor Code § 1197.5, et seq., requires California employers to pay men and women, and people of all races and ethnicities, equally when they perform substantially similar work.

Employees who demonstrate such inequality in pay may recover the difference in pay, including interest thereon, and an equal amount as liquidated damages, together with the costs of the suit and reasonable attorney’s fees. The statute of limitations is two years or three years for a “willful” violation.