Home Page Potential Lawsuit California labor employment law and prevailing wage law
California State Labor Laws
By Jane Mundy
California labor laws are put in place to protect you. For example, California labor employment law and the California prevailing wage law ensure that your employer does not violate wage and hour issues. Although California boasts some of the strictest state labor laws, violations of the California labor code are on the rise.
California Law includes issues such as overtime pay, meal and rest breaks, tip pooling laws, misclassification issues and more. California and Federal Employment labor laws secure an employee's civil rights to overtime pay and benefits while protecting against workplace harassment and discrimination.
California Labor Employment Law
An increasing number of employees in all kinds of professions find themselves working longer hours without overtime, from IT workers to delivery drivers to domestic workers. Perhaps they have been discriminated against when layoffs occur, or overlooked for bonuses or promotion. Perhaps they were misclassified to avoid paying overtime, benefits and taxes.
If you believe you have been the victim of unfair employment practices, there may be remedies available to you. The majority of California labor lawsuits are being filed over the following issues:
California has unique overtime pay laws that protect employees from working extensive hours. With differences between state labor law and federal regulations on overtime pay, employers (especially multi-state corporations) often may, either accidentally or intentionally, incorrectly classify employees to avoid paying overtime wages and therefore violate California labor laws.
California Wage & Hour Violations
California Minimum Wage As of January 1, 2016, the California state minimum wage was raised $1 to $10.00 per hour. Employees cannot agree to be paid less than the minimum wage.
This increase also affects exempt employees. Most of the California wage exemptions require that exempt employees earn a monthly salary equivalent to no less than two (2) times the state minimum wage. With the minimum wage increase to $10, exempt employees will have to earn $3,466.67 per month ($41,600.00 per year) to qualify for the exemption. This means that employers should undertake a compensation review of their exempt employees to ensure compliance with the new California labor law requirements.
Other California Minimum Wages There are local minimum wages higher than $10 per hour within California. For instance, San Francisco minimum wage is now $12.25 per hour, increasing to $13.00 per hour on July 1, 2016. Also as of January 1, 2016: San Jose is $10.30 per hour, Oakland is 12.55 per hour, San Diego is $10.50 and Emeryville will be $12.25 or $14.44 per hour, depending on the business' size.
Employees who work in restaurants or other industries that typically receive tips must still be paid the minimum wage without factoring in the tips. Employers cannot use tips as a credit towards the minimum wage.
An employer who fails to pay the new minimum wage will be required to pay liquidated damages to the employees in addition to the existing penalties. "Liquidated damages"is financial compensation awarded to an employee for a loss or injury resulting from the employer' failure to pay the minimum wage.
California Overtime laws require non-exempt employees be paid one-and-one-half times their regular rate of pay for any hours worked over eight in a day or 40 in a week. Furthermore, non-exempt employees should be paid two times their regular rate of pay for hours worked over 12 in a day or over eight on the seventh day of a workweek.
According to California labor law, overtime pay is based on hourly wages, salaries, shift differentials, non-discretionary bonuses and commissions. Failure to include those when determining overtime pay is an overtime bonus violation.
Meal and Rest Breaks The California Labor Code § 226.7 prohibits employers from requiring employees to work during meal or rest periods. Employees can sue for violations of California meal and rest break provisions going back a period of three years. In addition, it is likely that employees would be able to go back a total of four years under unfair competition laws.
If an employee does not receive the proper meal and rest periods, including "recovery periods"or "cool down period afforded an employee to prevent heat illness,"the employer must pay to the employee one hour of pay as a penalty. Employers are advised to review California OSHA recommendations to preventing heat illness.
California Exempt Employees & Misclassification Federal overtime pay laws established in 2004 set out who should be paid overtime wages for overtime hours worked. Unfortunately, some employers misclassify their employees as exempt from overtime, either due to a lack of understanding of the exemptions or to save money. For example, retail employees who have the title of assistant manager or manager may spend more than 50 percent of their time doing non-managerial work, such as cleaning or stocking shelves. If that person is not being paid overtime, the employer may be violating the California labor code.
One way to determine whether an employee is eligible for overtime pay is the "duties test," in which the work being done—and not the job title—is taken into consideration. To be exempt from overtime, an employee must do work that is mainly administrative, professional or executive in nature. This means performing work that is non-manual, related to management policies, involves discretion and judgment, directs other employees, and be paid salary.
In other words, it is not enough to simply give someone a job title with the word "administrative"in it to exempt that person from overtime. The employee must be involved in administrative job duties to be exempt.
Domestic Work Employees The Domestic Worker Bill of Rights provides for specific overtime pay for certain in-home employees; i.e., "domestic work employee who is a personal attendant."In-home care givers and individuals who require in-home care should study Bill AB 241 to determine whether the new law applies to them because it includes specific definitions and exclusions.
Under the Domestic Worker Bill of Rights, domestic workers are eligible for minimum wage of $9.00 per hour. Some cities, however, may have higher minimum wages in place. The California Bill of Rights (AB 241) includes overtime protections to domestic service employees (also known as personal attendants) who care for and support individuals and families in California. Casual babysitters are not included in AB 241.
Domestic workers are due time-and-a-half (overtime pay) for any work performed beyond nine hours in a day or beyond 45 hours in a week. All domestic workers are eligible for this overtime pay rate with the exception of babysitters under the age of 18, or individuals who work irregularly or intermittently as babysitters.
California Donning and Doffing Putting on and taking off protective gear, called donning and doffing, is required by some industries and companies to prevent the risk of injury or illness on the job. Some employees need to don and doff during breaks as well as starting and ending their shifts. Lawsuits are being filed claiming employees should be paid for the time spent donning and doffing protective gear.
Similar lawsuits are being filed when employees are required to carry out tasks prior to starting their shift or after ending it, such as cleaning work equipment, logging into computer systems, or undergoing security checks. Lawsuits claim that employers who engage in these practices benefit from this time and should pay for it, which usually constitutes overtime pay.
California Tip Pooling Employers in California cannot use tips as credit towards an employee's minimum wage (minimum $10 per hour or more, depending upon location--see above). Further, they cannot take wage deductions or credit card processing fees from tips.
Employers are prohibited from sharing or keeping any portion of a tip left for an employee by a customer. Any tip that is left behind is the property of the employee or employees they were left for. This allows employers to enforce tip pooling with other employees—such as busboys—but does not allow managers, owners or supervisors to share in that tip pool.
California Wage Theft Protection Act The California Labor Commissioner's Office under SB 588 and AB 970 now has the power to collect back wages and penalties from bosses who fail to pay minimum wage and overtime, force employees to work off the clock, refuse to offer meal and rest breaks, or make illegal paycheck deductions.
Employers can now be subject to stop-work orders, levies against their bank accounts and liens against their property. Employers, as well as owners, directors or managing agents acting on behalf of an employer, can be subject to criminal and personal liability. Previously, companies could avoid judgments by changing names. Now successor companies will be deemed liable if they engage in substantially the same work.
California's Wage Theft Protection Act of 2011 (Assembly Bill 469) requires employers to provide all employees with written notice of information at the time the employees are hired. Information given to the employee includes the rate of pay and how pay is determined, any allowances, regular paydays, employer's name, physical address of main office or principal place of business, employer's telephone number, contact information of the worker compensation insurance carrier and other information as deemed necessary by Labor Commissioner's Office.
California Prevailing Wage California construction projects—such as highway improvements, school construction or repair, work on city or county buildings, or bridge construction—are often paid for with public funds. California workers who provide labor for California public works projects or for California public improvements that exceed $1,000 in cost are entitled to receive wages at the prevailing rate—or "prevailing wage."California public works projects include those that are federally funded.
The prevailing wage rate for any publicly funded construction project is based on the basic hourly rate that a majority of workers who are engaged in similar work within the nearest labor market area are receiving. Public works laborers must be paid based on what the prevailing wage for their specific job is determined to be.
California Wrongful Termination means that an employee in California has been fired or laid off for reasons that violate the employee's legal rights. Even though California is an "at-will" state, there are situations in which the firing of an employee could be considered wrongful termination, and remedies are available. Laws protecting employees from wrongful termination are covered in the California Fair Employment and Housing Act.
California employers are subject to many laws that protect the rights of employees and ensure employees are aware of their rights and their employer's responsibilities. Employers who break those laws could face fines and regulatory actions as well as lawsuits from their employee.
As well as wage and hour laws, California employment laws also cover drug and alcohol testing, workers' compensation, employee termination, information provided on pay stubs, proper pay records, calculating travel time for employees, and mass layoff notices. Depending upon the size of the workplace, these regulations may change.
Some employers unknowingly make mistakes regarding their employees while others violate the law on purpose. In either case, employees are denied the rights and protections they are entitled to. Such situations can result in employees filing lawsuits against their employers.
See more information about labor compliance programs.
The California Fair Employment and Housing Act requires employers to prohibit sexual harassment , gender harassment, harassment based on medical conditions and harassment based on any other protected characteristic. Employers must also provide employees with information regarding sexual harassment—including legal remedies for sexual harassment. Those employers who have 50 employees or more must provide sexual harassment prevention training. Further, employers are required to reasonably accommodate an employee's religious beliefs, pregnancy, and disabilities.
Law SB 292 states that sexually harassing conduct does not need to be motivated by sexual desire. Further, hostile treatment can amount to unlawful sexual harassment regardless of whether the treatment was motivated by any sexual desire.
Law SB 400 includes protections to victims of stalking.
A hostile work environment includes harassing behavior so severe and pervasive that it creates an intimidating and offensive work environment, and actually alters the terms and conditions of employment. Harassment victims may be entitled to monetary damages under California law, depending on the circumstances of the harassment.
A number of laws protect employees from discrimination, including the Age Discrimination in Employment Act, the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act. The California discrimination statutes involve unequal pay, and sex and gender discrimination.
Discrimination Protection for Military and Veterans An amendment to Law AB 556 includes "military or veteran status"to the classes protected from employment discrimination. The amendment still allows employers to identify members of the military or veterans for purposes of awarding a "veteran' preference as permitted by law,"but employers are advised to proceed with caution when inquiring about military service in job applications or hiring decisions.
The Employee Retirement Income Security Act (ERISA) is a federal law governing employers who offer benefits such as health insurance, pensions and stock options. Under ERISA laws, lawsuits can only be filed in certain situations and employees are not eligible for punitive damages against employers. See more ERISA information here.
The Family Medical Leave Act (FMLA) is a federal act that requires covered employers to provide up to 12 weeks of unpaid leave to eligible employees for the following reasons: birth and care of the employee's newborn child; care for a child after adoption or foster care placement; care for the employee's spouse, child or parent with a serious health condition; or for a serious health condition that affects the employee's ability to work.
Employees are eligible for FMLA coverage if they have worked for a covered employer for at least one year, for 1,250 hours over the previous 12 months (not necessarily consecutive months) and if a minimum of 50 employees are employed by the same employer within 75 miles.
The California Family Rights Act (CFRA) was established to ensure employees had leave rights for the birth of a child; adoption or fostering of a child; serious health conditions of the employee's child, parent or spouse; or for the employee's own serious health condition. See more FMLA information here.
OHSAThe Occupational Safety and Health Act is a federal law enacted to ensure that employees work in an environment that is free from recognized hazards. It is part of the United States Code, Title 29, Chapter 15. See more OSHA information here.
All California workers, regardless of their immigration status, are protected by California labor laws. This includes minimum wage, overtime, workplace safety, protection from harassment and assault, and certain discrimination laws and retaliation. Furthermore, it is illegal for an employer to report or threaten to report undocumented workers in retaliation for asserting their rights. If these rights are violated, workers can file claims against their employers. Undocumented workers also have the right to file wage claims and workplace health and safety complaints. See more Undocumented Workers information here.
California Undocumented Workers
Important new statutes went into effect on January 1, 2016. Of the 807 new California labor laws in place, it is likely that many California labor lawsuits will involve the new Fair Pay Act. Four important changes are:
New California Labor Laws for 2016
Many new laws further protect new immigrants. For instance, employers are prohibited from reporting, or threatening to report, an employee' immigration status to the immigration authorities.
New Immigration Protections
AB 263 prohibits an employer from engaging in an "unfair immigration-related practice"when an employee exercises a right protected under state labor and employment laws. An employer may not request additional immigration documentation, use E-Verify when not authorized, threaten to file or filing a false police report, or threaten to contact or contacting immigration authorities.
AB 666 allows the state to suspend or revoke an employer' business license if the employer reports, or threatens to report, the immigration status of a current or former employee, or an employee' family member, because that employee makes a complaint about employment issues.
For a complete list of laws that are in effect in 2016, see the Los Angeles Times list.
California Labor Law Legal HelpCalifornia employees who feel their rights have been violated may have the opportunity to bring their complaint before the courts. If you are employed in the State of California and feel that your employer or a co-worker has violated a state or federal employment law, you may qualify for damages or remedies that may be awarded in a possible class action or lawsuit. Please click the link below to submit your complaint to a lawyer for a free case evaluation.
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