California Wage & Hour

I haven’t been paid all the money I’m owed for my work. What can I do?

Wages earned in California must be paid at least twice during each calendar month on days designated in advance as regular paydays. Overtime wages must be paid no later than the payday for the next regular payroll period following the payroll period in which the overtime wages were earned.

Other wages that may be earned but not properly paid include prevailing wages, reporting time pay, split shift wages, time you spend on-call, and meal and rest period premium wages.

Ultimately, you have the right to be paid for all hours you work as long as your employer knows—or should know—that you are working. Whether you are paid by the day, the week, or the piece, or by commission, you cannot be paid less than the applicable minimum wage for every hour you work. If you haven’t been paid at least the minimum wage for all the hours you have worked, or you haven’t been paid the right amount of overtime or other premium wages to which you might be entitled, you may have a claim against your employer for these unpaid wages as well as additional “liquidated damages.” You may also be entitled to interest on the unpaid wages and “waiting time penalties” if the wages remain unpaid after you left your job.

My wage statement isn’t accurate. What can I do?

Wage theft is a systemic problem. Employers in California must provide you with a wage statement whenever you are paid. This statement must include certain details, including gross and net wages earned, any deductions from your pay, the beginning and end dates of the pay period, as well as the total hours worked and the pay rates applicable to those hours, and the name and address of your employer. Any meal and rest period premium wages you have earned should be listed too. Finally, the wage statement is supposed to include your employee ID number or the last four digits of your social security number.

If any of these items are absent or seem incorrect to you, or you cannot make sense of the wage statement, you have the right to raise your concerns without retaliation from your employer. You can also bring a claim for the inadequate or inaccurate wage statements. Our California wage theft attorneys can help you if you believe you have suffered from wage theft.

I work more than 8 hours a day. Should I be paid overtime?

Employers in California must pay their employees overtime if they work more than 8 hours in a day or more than 40 hours in a week. Employers must also pay overtime if the employee works more than 6 days in a week. There are, however, exceptions. For instance, employers do not have to pay overtime to so-called exempt workers, employees directly employed by a city, county, or the state, or employees covered by a collective bargaining agreement that sets forth the hours worked and the rates paid for that work. You may also be subject to an “alternative workweek schedule” or a collective bargaining agreement that may alter when you are eligible for overtime.

If you are classified as an exempt employee and do not qualify for overtime, you should consult with an attorney to determine if you have been misclassified. If you are subject to an alternative workweek schedule, you should also consult with an attorney to determine if that schedule is legal.

My employer isn’t giving me a break to eat lunch. Can they do this?

Employers in California may not employ someone for more than five hours per day without providing the employee a meal period that is at least thirty minutes long during which the employee must be relieved of all duty. This meal period may be waived by mutual consent if the total hours worked for the day is less than six hours. You are also entitled to a second 30-minute, off duty meal period if you work more than 10 hours, except that this second meal period can be waived by mutual consent if the total hours worked is less than 12 hours and only if the first meal period was not waived. You must be permitted to leave the job site during your meal period.

In rare circumstances, where the nature of the work prevents relief, employers may be allowed to require employees to work during a meal period without penalty if both parties agree to it in writing. These are called on-duty meal period agreements.

If your employer is not providing you appropriate meal periods, is interrupting your meal periods, or is otherwise pressuring you to work during meal periods, you may have a claim against your employer for a premium wage equal to one hour’s pay at your regular rate. This rate includes all nondiscretionary compensation such as contractual shift-differential pay.

What are the guidelines for rest breaks in California?

Employers in California must authorize and permit employees to take rest periods over the course of the day. The length of the rest periods is determined by the total hours worked daily and must be at the minimum rate of a net ten consecutive minutes for each four-hour work period. A rest period is not required for employees whose total daily work time is less than 3.5 hours. The rest period is counted as time worked and must be paid. Employees on a rest break must be permitted to control how they spend the rest break and cannot be required to stay at the job site.

If you work outdoors, you may also be entitled to take additional rest breaks called “recovery periods” of no less than five minutes at a time to cool down and protect yourself from overheating.

If your employer is not providing you with rest or recovery periods, is interrupting your rest periods, or is otherwise pressuring you to work during rest periods, you may have a claim against your employer for a premium wage equal to one hour’s pay at your regular rate.

I am a full-time salaried employee. Should I be getting overtime?

Just because your employer pays you a salary does not mean you are exempt from overtime under California law. To be exempt, you need to make at least twice the state minimum wage and spend more than half of your work hours performing so-called “exempt work.” Exempt employees typically include people in managerial, executive, administrative, and professional roles. Most truck drivers are also exempt from overtime laws. You should consult with an attorney to help determine if you are misclassified as an exempt employee.  If you believe that your are being classified as an exempt employee unfairly and are entitled to unpaid wages, contact our team of employee law experts who understand all of the nuances.  Let our California unpaid wages lawyers help you!

How is overtime calculated?
Overtime is based on the regular rate of pay. Calculating the regular rate of pay can be complicated as it is based on your hourly rate plus certain nondiscretionary payments received in a pay period, such as salary, piecework earnings, bonuses, and commissions. In no case may the regular rate of pay be less than the applicable minimum wage. You should consult with an attorney to help determine if you are being paid the correct rate for purposes of overtime.

My employer requires me to be on-call but doesn’t pay me for that time. Is that legal?

Employers in California must pay employees for time spent on-call if their on-call time is considered work time. Work time is defined as any time the employee is required to be available to work. Therefore, if an employee is required to be on-call and is restricted from engaging in personal activities, they must be paid for this on-call time. Generally, employers in California must pay employees at least the minimum wage for their on-call time if they are required to be available for work.

I’ve been told that I am independent contractor and not an employee. Is this correct?
The California Supreme Court recently clarified the rule that for you to be classified as an independent contractor, you must be in control of how you perform your work, you must not be engaged in work that is in the employer’s usual course of business, and you must be customarily engaged in an independently established business or trade of the same nature as the work you are performing for the employer.

If any of these conditions are not met, you may be misclassified as an independent contractor and entitled to all of the benefits you would be entitled to if you had been properly classified as an employee.

My work requires me to use my own cell phone or drive my car to meetings. Can they do that?

Employers in California must reimburse you for all expenditures that you necessarily incur in direct discharge of your job duties. This includes expenses related to using your personal vehicle for business purposes as well as using your personal cell phone for work purposes. If your employer requires or allows you to use your personal cell phone for work, they must reimburse you for the costs associated with the use of the phone for business purposes.

I receive a commission, but don’t know how it is calculated.
Employers in California must provide you a written contract setting forth how your commission pay will be calculated. The contract must be signed by you and your employer. The explanation should be specific and clear enough that you don’t have to guess or do your own calculations to determine how you are being paid. If the rules of your commission change, your employer must be clear about those changes and how your new commission will be calculated.

Can my employer dock my pay as a form of discipline?
Generally, no. Your employer may also not unilaterally dock wages to recoup amounts that were overpaid. You must first freely consent to any future garnishment in writing. Moreover, you must still be paid at least minimum wage for all hours worked in the pay periods during which wages are garnished. You should consult an attorney if your employer tries to garnish your wages due to overpayments, or demands that you pay back any prior overpayments.

Is minimum wage the same everywhere in California?
The California minimum wage as of January 1, 2023, is $15.50/hr. Certain cities and counties in California have set higher minimum wage standards. Employers must post information on wages, hours and working conditions at a worksite area accessible to employees. You should consult with an attorney if you believe that you might be getting paid less than the minimum wage.

How long do I have to file a wage claim?
In most situations, you can file claims for unpaid wages up to three years after the unpaid work was performed. If your case is litigated in court and you are able to show that your employer violated the law, you may be able to claim unpaid wages up to four years prior to the date of filing through the California Unfair Competition Law, which is sometimes referred to as the UCL.

If you seek civil penalties and certain statutory penalties for things like inaccurate wage statements, you will need to file your claim within one year of the violation.

I’m receiving tips. Can my employer pay me less than minimum wage and use the tips to cover the shortfall?

No. Employers in California are not allowed to use tips to offset wages, even if the employee is receiving minimum wage or more. Tips are considered the property of the employee and must be paid directly to the employee.

I am an intern. Should I be paid?
Interns in California must be paid unless the internship is similar to training given in an educational environment and benefits the intern. The employer must not derive any immediate advantage from the intern’s activities and any on-the-job training must be similar to what the intern would receive in a vocational school. Finally, the intern must not displace regular employees and must not be led to believe that he or she is entitled to a job at the conclusion of the internship.