Frequently Asked Questions
Employers in California must comply with a wide range of laws and regulations set forth in the California Labor Code. These laws cover topics such as minimum wage, overtime, meal and rest periods, hours of work, anti-retaliation protections, recordkeeping and reporting requirements, workplace safety, workers’ compensation, and family and medical leave. Various cities also have their own rules, including rules setting forth the minimum wage. The Division of Labor Standards Enforcement—also known as DLSE or the Labor Commissioner—enforces such laws in California and handles claims filed by workers even if they aren’t represented by an attorney.
Employers must also comply with other laws such as the Fair Employment and Housing Act that prohibit discrimination and harassment in the workplace. The California Civil Rights Department (CRD) enforces these laws in California and handles claims filed by workers even if they aren’t represented by an attorney.
Both the DLSE and the CRD have jurisdiction over claims of retaliation, which means you can file claims of retaliation with either department.
If you think that your employer has broken the law, you should contact an attorney to receive an individualized assessment of your potential legal claims. An attorney will assess whether your case can go to court. An attorney will also assess alternatives that may be available or required, such as arbitration and mediation.
The questions and answers presented in the FAQ are not intended to be exhaustive and do not constitute legal advice for your particular question, issue, or concern, nor does this FAQ create any attorney-client relationship or duty on our part to assist you. The information may help you think about your issues and ask the right questions if you choose to consult with an attorney.
California Wage and 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?
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.
- 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.
- 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.
- I have a disability. Am I protected?
California employment discrimination law prohibits employers for discriminating against employees based on “protected characteristics,” which include race, gender, ethnicity, disability, age, sexual orientation, or religion, among others. If you believe your employer is discriminating against you based on one of these characteristics, they may be violating the law.
- How do I know if I’ve been the subject of discrimination based on my disability?
Disability discrimination can take many forms, including but not limited to terminating the employee, refusing to promote the employee, refusing to give the employee a raise when otherwise justified, and providing different work assignments or training. Employers can legally refuse to hire you if you do not meet the requirements for the job. However, if you do meet the requirements, an employer cannot reject you based on your disability.
- Can my employer ask me to submit to a medical exam as a condition of employment?
Generally, employers in California are not allowed to require an employee to submit to a medical exam as a condition of employment. However, employers may require that employees submit to medical exams if they have reasonable suspicion that an employee is impaired due to the use of drugs or alcohol. Additionally, employers may require medical exams after an employee has been offered a job, but only if the exams are job-related and necessary for the employer to determine if the employee is able to perform the essential functions of the job.
- Is my boss required to accommodate my disability?
Employers are required to provide reasonable accommodations to disabled employees if the cost of such accommodation does not create an undue hardship for the company. Undue hardship is primarily determined by the level of financial impact an accommodation might have on a business, given the business’ size and resources.
- What is a reasonable accommodation?
Examples of reasonable accommodations may include adapting equipment, exams or training materials, helping ensure access to facilities, changing work schedules, restructuring work duties, or offering readers or interpreters for the visually and hearing impaired.
- Do I have to disclose or share details about my disability to receive accommodation?
You must disclose that you have a disability to your employer or someone who represents your employer, such as your manager or HR personnel to qualify for a reasonable accommodation. You may be asked for reasonable medical documentation to show that you do in fact have the disability, such as a doctor’s note, but you do not need to provide intimate details of your condition, such as medical or psychiatric records. Your employer is legally required at minimum to engage in a reasonable accommodation process with you once they are on notice of your disability.
- Is a disability claim different from a workers’ comp claim? Can I have both?
Workers’ compensation provides benefits to workers who are injured on the job, or whose existing health issue or disability is worsened by the job. Disability protections, on the other hand, protect disabled employees from discrimination at work and require employers to provide reasonable accommodations for their disability so they can perform their jobs. Workers can qualify for both.
- My employer has discriminated against me because of a disability. What can I do?
You can file a claim with the California Civil Rights Department (CRD) if you have been subject to discrimination. Alternatively, you can contact a lawyer to bring claims against your employer in court. Before bringing the claims in court, you will have to obtain a right to sue letter from the CRD. An attorney can help you with that.
- What can I do if I am fired, disciplined, or treated worse after complaining about disability discrimination?
If you have a disability and are subject to retaliatory action after complaining about disability discrimination against yourself or your coworkers, your employer may be breaking the law. Examples of retaliatory actions include, but are not limited to, firing an employee who speaks up, disciplining them (including coming up with pretextual reasons for the discipline), or treating them worse than before. An attorney can help analyze the details of your case and any potential claims you may have.
- What do I need to tell my employer in writing about my disability?
There are no specific details or legal phrases that must be used when informing your employer about a disability or requesting reasonable accommodation. Just letting them know that you have a disability and need assistance is enough to initiate a reasonable accommodation process. Additionally, your request for reasonable accommodation can take place in writing, by phone, through an in-person conversation, or any other form of communication. However, written records of your request such as emails can be useful to help keep track of your communication efforts, in case your employer tries to deny that you ever made the request.
EQUAL PAY ACT
- I think my employer pays me less than my coworkers. Is that legal?
An employee in California can bring a claim for violation of the California Equal Pay Act if they can show that they performed substantially similar work to their co-workers of the opposite sex but received less compensation. The employee must show that the difference in pay was based on their sex and not due to any other factor such as seniority, merit, skill, or quantity/quality of work. The employee must also show that the same employer is responsible for both the employee’s and their co-worker’s pay. The burden of proof falls on the employer to justify any differences in pay based on the allowable factors under the law. You can read more about Equal Pay protections on our blog.
- How do I know if I’m being paid the same as other people in my position at work?
California workers have the right to discuss their wages and salaries, as well as the right to ask companies for the salary scale that applies to them. Job applicants cannot be asked for salary history information, and salary history cannot be used to justify pay differences based on sex, race, or ethnicity. More information about Equal Pay protections is available on our blog.
- How can I tell if my coworkers engage in “substantially similar work?”
“Substantially similar work” refers to work that is mostly similar in skill, effort, and responsibility, and performed under similar working conditions. Skill refers to the experience, ability, education, and training required to perform the job. Effort refers to the amount of physical or mental exertion needed to perform the job. Responsibility refers to the degree of accountability or duties required in performing the job.
- Is there a time limit to file an Equal Pay Act claim?
Yes. The statute of limitations for an Equal Pay Act claim is two years from the date of the alleged violation and three years for willful violations. Each paycheck that reflects unequal pay is considered a violation for the purposes of calculating the deadline for filing.
- What is the difference between Equal Pay laws and anti-discrimination laws?
Unequal pay is a form of illegal discrimination. You may, but are not required to, file a claim with the California Civil Rights Department (CRD) if you are only claiming unequal pay based on sex, race, or ethnicity. If you have additional claims of discrimination—for example, if you also claim discrimination in promotion based on sex or if you also claim discrimination based on another protected characteristic—you can include a claim for unequal pay along with the other claims of discrimination when you file the claim with the CRD.
- What if my employer retaliates against me after complaining about unequal pay?
The California Labor Code specifically protects employees who discuss or inquire about pay, or who try to challenge violations of the Equal Pay Act. If you are fired, disciplined, or treated worse after complaining about unequal pay, your employer may be engaging in illegal retaliation. An attorney can help analyze the details of your case to determine what claims you may have.
- What are my rights to equal pay if I am undocumented?
Undocumented workers have most of the same legal rights that citizens have under California and federal law. This includes minimum wage protections and protections against discrimination. That said, filing a lawsuit against your employer can create some risk of retaliation by your employer. If your employer reports you to Immigration and Customs Enforcement, for example, ICE is allowed to follow up on the report, even though by making the report the employer is engaging in illegal retaliation.
- Do equal pay and anti-discrimination laws apply to all employers?
The California Equal Pay Act applies to all employers who employ two or more employees. The Federal Equal Pay Act applies to employers with 15 or more employees. The various federal and state anti-discrimination laws have their own requirements regarding employer size.
- My boss won’t let me come back after I took a medical leave. What should I do?
It is illegal for employers to retaliate against employees for taking a protected leave. If you believe you are being treated differently for taking a protected leave, you may want to contact an attorney.
- Can my employer impose a limit on the amount of medical leave I can take?
An employer may impose a limit on the amount of medical leave an employee may take beyond the statutory minimum amounts of time. The employer may only impose such limits if the additional time would amount to an “undue hardship” on the employer, or if another accommodation would enable the employee to perform the essential functions of the position.
- What if my leave of absence is contested by my employer?
Your employer may require that you provide a doctor’s note before approving the medical leave, but only if no such leave has previously been granted. In general, employers may not interfere with the employee’s rights on a practical level. Accordingly, an employer cannot characterize the leave as personal leave rather than medical leave. Generally, such claims do not require proof of discriminatory or retaliatory intent. You should consult with an attorney to determine what potential claims you may have.
- Is medical leave itself a form of reasonable accommodation?
Medical leave for treatment, procedures, or recovery is a form of reasonable accommodation. If such leave is denied, you may have claims for disability discrimination as well as claims for interference. You should consult with an attorney to determine what potential claims you may have.
- What is the difference between paid sick leave and FMLA/unpaid medical leave?
Paid sick leave provides employees with paid time off to recover from illness or injury, or to care for a sick family member. Unpaid medical leave is when an employee has to take time off due to illness or injury but does not receive any pay for that time.
- What is the difference between short term disability leave and FMLA?
Short-term disability leave is a type of insurance policy that provides financial assistance to employees who are unable to work due to a medical illness or injury. The FMLA (Family and Medical Leave Act) is a federal law that requires employers to provide eligible employees with up to 12 weeks of unpaid leave for certain family and medical reasons.
- What do I need to tell my employer about my leave?
While the regulations implementing the FMLA provide that an employer can require an employee’s health care provider to provide a statement or description of appropriate medical facts regarding the employee’s health condition in connection with evaluating the applicability of the FMLA, this does not mean that the employer can ask you about the diagnosis. Nor do the regulations require that the health care provider provide the diagnosis. If the leave is associated with a disability, the ADA prohibits the employer from making any health or medical inquiries unless doing so is job-related and consistent with business necessity.
- What is a severance agreement?
Employers in California are not required to provide severance pay to their employees, though an employment contract or collective bargaining agreement may require such a payment. Accordingly, employers often offer a severance payment in exchange for the employee releasing claims they may have against the employer, including claims for wrongful termination. Employers often attach tight deadlines to such offers. These agreements are difficult to overturn once signed, but an attorney can help you negotiate the terms of your severance agreement prior to signing, as well as help you determine if you have recourse after you have already signed. You can learn more by reading our blog post about severance agreements.
- Should I sign my severance agreement?
You should make sure before you sign a severance agreement that you understand what potential claims you would be giving up by signing the agreement. If you believe you have significant claims that are not fully addressed by the severance agreement, you may want to consult a lawyer. You can read more about legal consultation for severance here.
- Can I negotiate for more severance pay?
Yes, but you should consult a lawyer with experience in negotiating such agreements who can help you evaluate the terms of your severance agreement and potentially negotiate for a better deal. A lawyer can also help you understand what legal rights you are giving up and can help you identify legal claims you may have against the employer that can convince the employer to offer a better severance package.
- Can I challenge my severance agreement? / What if I was forced to sign a severance agreement?
A severance agreement can be challenged if the employer used deceit, duress, or misrepresentation to get the employee to sign the agreement. Otherwise, most legal claims are released by an employee when they sign a severance agreement. Some kinds of claims however, cannot be released, including certain age discrimination claims, workers’ compensation claims, and minimum wage and overtime claims.
- Is it retaliation if I don’t get a raise, or don’t get promoted?
Retaliation can take the form of any “adverse action” against an employee who engages in a protected action. Such adverse action usually takes the form of unequal treatment of the employee, which may include termination, harassment or threats, reduction in pay, or refusal to promote.
- What types of situations are covered by whistleblower protections?
California law protects employees who:
1. Report suspected unlawful conduct
2. Oppose or refuse to engage in unlawful conduct
3. Internally report illegal conduct
4. Are required to engage in internal whistleblowing as part of their job
Employers cannot retaliate against such employees. Nor can employers retaliate against anyone in anticipation of potential whistleblowing.
Family members of the employee are also protected by these laws. For more information, read our blog post about whistleblowing protections in California.
- I only complained within my company. Do I qualify as a whistleblower?
Yes, California protects internal whistleblowing.
- Can I get fired for filing a lawsuit, or participating in a lawsuit?
Participating in a lawsuit against your employer is a protected legal right. If you are subject to an adverse action, such as termination, due to your participation in a lawsuit, you may be able to claim workplace retaliation.
- How long do I have to file a workplace retaliation lawsuit?
In general, a discrimination claim—including a claim for workplace retaliation—must be submitted to the California Civil Rights Department (CRD) within three years of the date upon which the alleged unlawful practice(s) took place. There are other retaliation claims that do not go to the CRD. For example, California’s Labor Code has retaliation protections that do not require involvement of any government agency and can be filed directly in court. A three-year deadline applies to such Labor Code claims. A common law retaliatory discharge claim must be filed within two years.
- Will it be public knowledge if I sue my employer for workplace retaliation?
Yes. Typically, lawsuits involving workplace retaliation are publicly available as they are filed with the court. However, the information contained in the lawsuit may be redacted in accordance with state and federal privacy laws. Additionally, the parties involved may agree to keep the lawsuit confidential.
- Who do I contact if my employer is breaking the law?
You can file a claim with the CRD, who will investigate your claims. You can also consult with an attorney who can handle this process for you and obtain a right to sue letter so that you can bring your claims in court.
- What are some signs that I might have been wrongfully terminated?
There are several indications that an employee may have been wrongfully terminated. These include being terminated for discriminatory or retaliatory reasons; being terminated for exercising a protected right; being terminated without notice; and being terminated in violation of company policies. If you believe you have been wrongfully terminated, it is important to contact an experienced employment attorney for advice.
- Can I be wrongfully terminated if I never signed an employment contract?
Yes, an employee can be wrongfully terminated even if they never signed an employment contract. In California, most employees are considered “at-will” employees, meaning that they can be terminated at any time, for any reason, with or without notice. However, employers are still prohibited from wrongfully terminating an employee based on discrimination, retaliation, or other prohibited reasons.
- Can I be wrongfully terminated if I’m undocumented or on a work visa?
Yes, an employee can be wrongfully terminated even if they are undocumented or on a work visa. In California, employers are prohibited from terminating an employee based on discrimination, retaliation, or other prohibited reasons, regardless of their immigration status. That said, employers are required to refuse to hire, or terminate, an employee once they learn of their lack of work authorization. You should note that filing a lawsuit against your employer runs the risk of retaliation by your employer. If your employer reports you to Immigration and Customs Enforcement, for example, ICE is allowed to follow up on the report, even though by making the report the employer is engaging in illegal retaliation.
- Can future employers find out if I file a wrongful termination lawsuit against a past employer?
Yes. Generally, this information is publicly available, as it is filed with the courts. However, certain information contained in the lawsuit may be redacted in accordance with state and federal privacy laws. Filing a lawsuit against an employer may affect your future employment prospects, depending on the circumstances of the lawsuit. Generally, employers are wary of hiring employees who have a history of filing lawsuits against former employers. Therefore, it is important to consider the potential implications of filing a lawsuit before taking any action.
- How long do I have to file a wrongful termination lawsuit?
Under California law, you have two years from the date you were notified of termination to file a wrongful termination lawsuit. There could be retaliation claims based on the same events that have a three-year deadline for filing.
- I am a contractor. Can I file a wrongful termination lawsuit?
Generally, no. Usually, only employees have protections against termination for illicit reasons. However, if a worker is misclassified as a contractor when they should be considered an employee, that worker may claim wrongful termination. Such a claim would first require the worker to successfully prove that they were misclassified.
- What if my employer lies about their reasons for firing me?
An employer might assert that a termination was for a lawful reason, and you may dispute the truthfulness of that assertion. During a lawsuit you have the opportunity to argue that the employer’s given reason was not the true motivation for the termination.
- What if my employee handbook says my employment is “at will?”
Most employees in California are “at-will” employees, meaning they can be terminated at any time without cause. But even at-will employees are entitled to protection against termination that is illegal. For example, it is illegal to terminate an employee for participating in a lawsuit against their employer, or because of discrimination against protected characteristics such as age, gender, sexual orientation, disability, or pregnancy.
The questions and answers presented in this FAQ are not intended to be exhaustive and do not constitute legal advice for your particular question, issue, or concern, nor does this FAQ create any attorney-client relationship or duty on our part to assist you. The information may help think about your issues and ask the right questions if you choose to consult with an attorney.
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