Is your employer following the law? Know your rights about pay, time off, and working conditions.

Your employer must give you:

Wages

California’s Minimum wage – $11.00 per hour ($10.50 for employers with less than 26 employees).

*Tips cannot be counted as part of your minimum wage

** Please be aware that cities are free to set a minimum wage that is higher than the State’s minimum.  Currently, for instance, the city of San Francisco’s minimum wage is $14.00/hour and the city of San Diego’s minimum wage is 11.50/hour. So, please be sure and check to see if the city you live in has a minimum wage that is higher than the state of California’s.

Your employer has to pay you for all time that you are under their control or subject to work duties at the applicable minimum wage or the hourly rate your employer has agreed to pay you.

Overtime

1.5 X Regular Pay After 8 hours in one day or 40 hours in one week

2 X Regular Pay After 12 hours in one day

Wages for all the time you work

Your employer must pay you wages for all the time that you work. That is, any time that you are subject to the control of your employer or subject to any duties. This includes while you are “clocked out” for meal breaks if you are still subject to work duties.

The control or work duties for which you must be compensated do not have to be related to your core duties. For instance, if you are a shipping clerk in a warehouse, you would be under your employer’s control and must be compensated if you are relieved of all of your active shipping clerk duties, but the employer requires you to keep your phone or two-way radio on so they can reach you.

Meal breaks

Your employer has a duty to provide you a 30 minute meal period before the end of your 5th hour of work and a second meal period before the end of your 10th hour of work. Your employer satisfies this obligation if it:

  1. Relieves you of all duty,
  2. Relinquishes control over all your activities and
  3. Permits you a reasonable opportunity to take an uninterrupted 30-minute break, and
  4. Does not impede or discourage you from doing so.  Or provide you an incentive to forego taking a meal break.

In addition, if you are subject to the employer’s control or duties while you are on a meal period, your employer must pay you for that time.

Rest breaks

Your employer has a duty to provide you 10 minutes net rest time per four hours (4) or major fraction thereof.  Which means you have to be provided rest breaks as follows:

1st rest break – when you work 3.5 hours

2nd rest break – when you work 6 hours

3rd rest break – when you work 10 hours

4th rest break – when you work 12 hours

5th rest break – when you work 14 hours

Your employer’s duty to provide rest breaks is the same as the duty to provide meal breaks (see above).  For example, if you have to answer your phone or are subject to “call-back” during a rest break, your employer hasn’t provided you a legally compliant rest break under California law.

Recovery periods

California law requires all employers with “outdoor places of employment” to implement a heat illness prevention program that includes providing you with five-minute “cool-down” rest breaks in the shade. Some industries also require employers to comply with “high-heat” recovery procedures.

Labor Code 226.7 penalties for failing to provide meal/ rest breaks and recovery periods

If your employer doesn’t provide you with a legally compliant meal period, rest break and/or recovery period – then you are entitled to an hour’s pay for each workday it isn’t provided.

Paycheck stub violations

The way you can discover if you are owed unpaid wages is to compare the time you work (read: subject to the control of your employer or subject to your employer’s duties) to your paycheck stubs.  Using your paystubs is vital for you to be able to discover if you are being paid all the wages you are owed. Because of this, California law requires the itemized paycheck stubs to include the following information:

  1. The employer’s name and address;
  2. The inclusive dates for which you are being paid;
  3. The gross wages earned;
  4. The net wages earned;
  5. The total hours worked for nonexempt employees;
  6. For employees paid on a piece-rate basis, the applicable piece rate and units earned;
  7. All applicable hourly rates; and
  8. All deductions.

There are two types of paycheck stub violations. First, when your employer doesn’t put the above-listed required information on your paystub. Second, when your employer doesn’t pay you’re the wages you are owed and doesn’t put the wages you are owed on your paystub, such as unpaid hours, minimum wage, overtime, wages owed for missed meal breaks/ rest breaks.

When your employer fails to provide you with accurate paystubs, you may be entitled to $50 for the initial violation, and $100 for subsequent violations, up to $4,000.

Waiting time penalties

The law realizes how tough it can be for you when you aren’t paid your final wages when you terminate your employment. Thus, if you are fired or let go by your employer, your final wages must be paid at the time that you are let go or fired (read: involuntarily terminated). If you resign (read: quit) and give at least 72 hours notice, your employer must pay your final wages on your last day. If you resign or quit with less than 72 hours notice, final wages must be paid within 72 hours. You are entitled to seek waiting time penalties equivalent to one day’s regular wages for each day the payment is late, for up to 30 days. In many instances the waiting time penalties can end up being much more than the underlying final wages that are owed.

Employee vs. Independent contractor

Employers will oftentimes improperly classify you as an independent contractor so that they will not have to pay you wages for all the time you work, pay you overtime, provide meal breaks, rest periods, itemized paystubs, and reimburse you for business expenses and the like.  The law presumes that you are an employee and the person/ company that hires you has the burden of proving you are not an employee.  The law applies a “multi-factor” test in order to determine whether you’re an employee. The most important factor is whether the person/ company that hired you has control or the right to control your work and the manner and means in which it is performed. And even in the absence of this control over the details of your work, you may still be found to be an employee and owed substantial unpaid wages.

Paid Sick Leave

You are entitled to 3 days or 24 hours per year (after 30 days on the job).

Family, Military & Personal Leave

For yourself, or a family member in time of illness, birth or adoption of a child*

Up to 4 months disability leave for pregnancy/birth.

Right to return to your job (or a comparable one) after taking off up to 12 weeks after a child’s arrival*

Return to your job after performing military service

*After 1-year employment

Workplace conditions

A safe working environment.

A workplace free from harassment.

Workers compensation benefits if injured on the job (by single event or repeated exposure)

Adequate space to breastfeed

Protection from discrimination based on:

  • Age
  • Disability
  • Gender identity or gender expression
  • Marital status
  • Medical condition
  • National origin
  • Race
  • Religion
  • Sex/gender
  • Sexual orientation

You cannot lawfully be turned down for hire, paid less than others doing the same work, fired, or mistreated based on these traits.

If you think your rights have been violated:

Keep track of the violations and write down what occurred, when, and who was involved. Also write down any conversations you have with your boss about the violations.

Follow your employee handbook or workplace HR policy to make a report. The law protects you from retaliation when you make a complaint in good faith.

Make a report to the Labor Commissioner. Go to: www.dir.ca.gov/dlse/ DistrictOffices.htm to find your local office or call 1-844-LABOR-DIR.

Sexual Harassment is Against the Law

Sexual harassment is a form of discrimination based on sex/gender, gender identity, gender expression, or sexual orientation. Types of sexual harassment include: unwanted sexual advances, offering benefits for sexual favors, leering, gestures or displaying sexual suggestive objects or pictures, derogatory comments, slurs or jokes, graphic comments, suggestive messages or invitations, and physical touching or assault, as well as impeding or blocking movements. You may experience sexual harassment even if the conduct was not aimed directly at you.  Your employer cannot lawfully retaliate against you for rejecting advances or complaints.

Private Attorneys General Act

The reality is that California simply doesn’t have the resources to enforce California labor statutes. It was all too apparent to the California legislature that District Attorneys simply weren’t enforcing California Labor Code Sections which criminalized wage theft and worker safety law. Because of this, California adopted the Private Attorneys General Act (“PAGA”) in 2004 to help workers hold companies accountable when they break the law by cheating workers out of wages, fail to comply with workplace safety regulations, or otherwise violate labor laws.

The purpose of the PAGA is not to recover damages or restitution, but to create a means of ‘deputizing’ citizens as private attorneys general on behalf of the California Labor Commissioner in order to enforce the law.  It is a law enforcement action designed to protect the public and penalize employers for past illegal conduct.

Forced Arbitration – Another Way Employers May Try to Avoid Accountability 

When you start a new job, your employer may try to have you sign an agreement that you will use an arbitrator to deal with any workplace-related legal claims, rather than going through the courts. When companies cannot be sued in court, workers are subject to fraud and deceptive business practices and have no choice but to be reliant on a rigged system developed to favor corporations.  Oftentimes PAGA actions are the only way workers can hold employers accountable because PAGA actions are not subject to forced arbitration.

But workers’ rights organizations, including the Consumer Attorneys of California, are working to get California’s workers the justice they deserve by encouraging policy makers to ban forced arbitration.

This outlines some of the basic protections California workers have under state and federal law. It is intended to help you protect your rights at work, but it isn’t a comprehensive description of the law and it doesn’t substitute for legal advice. If you have any questions on your employment law rights, contact your union representative or visit www.caoc.org and click “Members – Attorney Directory” to find a qualified employment attorney in your area.