The price of living in California is well above the United States average—according to USA Today, housing alone costs 76.7% more in California than in the rest of the country.
To address this concern, California has enacted numerous minimum wage laws to help struggling families afford the rising costs of living in the Golden State. For example, the minimum wage in California is set to increase to $15.50 per hour in California by 2023 for most employers.
Individual counties and cities in California have enacted their own wage ordinances to help families pay for necessities such as food, clothing, utilities, and housing, which may be more expensive in certain areas. For instance, starting July 1, 2022, the minimum wage in Los Angeles will be $16.04 and in San Francisco it will be $16.99.
Furthermore, the federal government as well as California limit the number of hours you can work in a week before you are owed overtime pay. For example, in California, if you work more than eight hours in a workday or more than forty hours in a workweek, you are entitled to overtime compensation.
Some employers in California violate the minimum wage and overtime laws by doing the following:
- Requiring employees to work off the clock.
- Paying employees “under the table” in cash.
- Using tips & gratuities toward the minimum wage.
- Requiring employees to undergo exit searches at the end of their shifts.
- Promising to give time off in lieu of paying wages.
- Requiring employees to work through their meal break.
- Outright refusing to pay the correct minimum wage.
As an employee in California, you have a right to fair wages. If your employer has been paying you less than the applicable minimum wage or less than the applicable overtime wages, then you may be able to take legal action against them and recover the wages you are rightfully owed.
For a free consultation and to learn more, contact us.
SOME FAQ REGARDING MINIMUM WAGE
1. What is the difference between federal, state, and local minimum wage?
Most employers in California are subject to both the federal and state minimum wage laws. Also, local entities (cities and counties) are allowed to enact minimum wage rates and several cities have recently adopted ordinances which establish a higher minimum wage rate for employees working within their local jurisdiction. The effect of this multiple coverage by different government sources is that when there are conflicting requirements in the laws, the employer must follow the stricter standard; that is, the one that is the most beneficial to the employee. Thus, since California’s current law requires a higher minimum wage rate than does the federal law, all employers in California who are subject to both laws must pay the state minimum wage rate unless their employees are exempt under California law. Similarly, if a local entity (city or county) has adopted a higher minimum wage, employees must be paid the local wage where it is higher than the state or federal minimum wage rates
2. May an employee agree to work for less than the minimum wage?
No. The minimum wage is an obligation of the employer and cannot be waived by any agreement, including collective bargaining agreements. Any remedial legislation written for the protection of employees may not be violated by agreement between the employer and employee.
3. Is the minimum wage the same for both adult and minor employees?
Yes. There is no distinction made between adults and minors when it comes to payment of the minimum wage.
4. I work in a restaurant as a waitperson. Can my employer use my tips as a credit toward its obligation to pay me the minimum wage?
No. An employer may not use an employee’s tips as a credit toward its obligation to pay the minimum wage. Follow the link to learn more about Tips & Gratuities.
5. Does my employer have to pay me for the time I spend undergoing exit searches at the end of my shifts?
Yes. California law requires employers to pay their employees a minimum wage for all hours worked. California regulations define hours worked to mean “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.”
For example, in Frlekin v. Apple Inc., 8 Cal. 5th 1038, 1042 – 1043 (2020), the California Supreme Court held that the time spent by Apple retail store employees waiting for and undergoing mandatory exit searches of their personal bags before leaving their employer’s premises was employer-controlled activity and therefore was compensable as “hours worked.”
6. Can my employer deduct anything from my paycheck if I come to work late?
Yes, your employer can deduct money from your paycheck for coming to work late. The deduction shall not, however, exceed the proportionate wage that would have been earned during the time actually lost, but for a loss of time less than 30 minutes, a half hour’s wage may be deducted. Labor Code Section 2928. For example, if you earn $12.00 per hour and come to work 40 minutes late, your employer can deduct $8.00 from your paycheck. And if you come to work five minutes late, your employer can deduct $6.00.
7. Is my employer required to compensate me for the time spent obtaining a COVID-19 test or vaccination?
If the employer requires an employee to obtain a COVID-19 test or vaccination, then the employer must pay for the time it takes for the testing or vaccination, including travel time.
The employer must pay for the time it takes for testing or vaccination because such time would constitute “hours worked.” The term “hours worked” means the time during which a worker is subject to the control of an employer, and includes all the time the worker is suffered or permitted to work, whether or not required to do so. Under this definition, one way to determine whether time a worker spends performing a task must be paid as time worked is whether the employer exercised control over the worker by requiring the worker to perform that task. If an employer requires that a worker obtain a medical test or vaccination, the time associated with completing the medical test or vaccination, including any time traveling and waiting for the test or vaccination to be performed, would constitute time worked. However, unless otherwise required, the time spent waiting for COVID-19 test results is not compensable as hours worked, although the worker may be able to utilize paid leave while waiting for the results.
An employer cannot require the worker to utilize paid leave if the time is considered “hours worked” as referenced above.
If the time is not considered “hours worked,” the worker may be able to utilize the worker’s paid leave for time off from work to obtain testing or vaccination. Regular paid sick leave may be used for preventive care, which includes medical testing and vaccines, for the employee or the employee’s family members, and is protected against retaliation under the Labor Code.
8. Is my employer required to compensate me for the cost of a COVID-19 test or for the cost, if any, of getting a COVID-19 vaccination?
Yes, if an employer expressly requires an employee to obtain a COVID-19 test or a vaccination, or if the employee obtains the test or vaccination as a direct consequence of the employee’s discharge of the employee’s duties (i.e., the test or vaccination is effectively required for a job), the employer must pay for the costs of the test or vaccination as it is a reimbursement for necessary business expenses. If the employer requires a test or vaccination and there is no designated testing site, workers should ask which location(s) or vendor(s) are acceptable to the employer to avoid disputes over cost.
If the testing or vaccination is performed at a location other than the employee’s ordinary worksite, the employee may also be entitled to reimbursement for necessary expenses incurred to travel to and from the testing or vaccination location.
9. If I break or damage company property or lose company money while performing my job, can my employer deduct the cost/loss from my wages?
No, your employer cannot legally make such a deduction from your wages if, by reason of mistake or accident a cash shortage, breakage, or loss of company property/equipment occurs. The California courts have held that losses occurring without any fault on the part of the employee or that are merely the result of simple negligence are inevitable in almost any business operation and thus, the employer must bear such losses as a cost of doing business. For example, if you accidentally drop a tray of dishes, take a bad check, or have a customer walkout without paying a check, your employer cannot deduct the loss from your paycheck.
There is an exception to the foregoing contained in the IWC wage orders that purports to provide the employer the right to deduct from an employee’s wages for any cash shortage, breakage or loss of equipment if the employer can show that the shortage, breakage or loss is caused by a dishonest or willful act, or by the employee’s gross negligence. What this means is that a deduction may be legal if the employer proves that the loss resulted from the employee’s dishonesty, willfulness, or grossly negligent act. Under this regulation, a simple accusation does not give the employer the right to make the deduction.
Labor Code Section 244 clearly prohibits any deduction from an employee’s wages which is not either authorized by the employee in writing or permitted by law, and any employer who resorts to self-help does so at its own risk as an objective test is applied to determine whether the loss was due to dishonesty, willfulness, or a grossly negligent act. If your employer makes such a deduction and it is later determined that you were not guilty of a dishonest or willful act, or grossly negligent, you would be entitled to recover the amount of the wages withheld.
10. What, if anything, can my employer do if I experience shortages in my cash drawer?
Your employer may subject you to disciplinary action, up to and including termination of employment. Additionally, your employer can bring an action in court to try to recover any damages and/or losses it has suffered.
11. What can I do if my employer doesn’t pay me at least the minimum wage?
You can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner’s Office), or file a lawsuit in court against your employer to recover the lost wages. Additionally, if you no longer work for this employer, you can make a claim for the waiting time penalty pursuant to Labor Code Section 203.
12. What can I do if my employer retaliates against me because I questioned him about not being paid the minimum wage?
If your employer discriminates or retaliates against you in any manner whatsoever, for example, he discharges you because you asked him why you weren’t being paid the minimum wage, or because you file a claim or threaten to file a claim with the Labor Commissioner, you can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. Alternatively, you can file a lawsuit in court against your employer.
For a free consultation and to learn more, contact us.