​Are you an exempt or non-exempt employee?  Are you an hourly or salaried employee?  Are you an employee or an independent contractor?  These questions are not defined simply by what an employer defines their workers as, but is determined by the law.  Misclassification by employers is an all too common practice to avoid paying their employees properly, and to avoid providing proper benefits to an employee such as meal and rest breaks as mandated by law.  The law provides that non-exempt employees must be provided with the following:  

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• Under the California Labor Code, a non-exempt employee must be paid at least the minimum wage for all hours worked in a day for the first 8 hours.

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• Any hours worked by a non-exempt employee over 8 hours in a day, on a seventh consecutive day, or over forty hours in a week must be paid the overtime rate at time and a half.

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• Any hours worked by a non-exempt employee over 12 hours in a day or over 8 hours on any seventh consecutive day must be paid the overtime at double time.

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• A non-exempt employee must be provided with a thirty minute meal break if they work more than 5 hours in a day, and a second meal break if they work more than 10 hours. 

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• A non-exempt employee who works more than 3.5 hours in a day is entitled to a 10 minute rest break for every 4 hours worked, or substantial fraction of a four hour period worked in a day.

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• California employees are entitled to timely payment of wages and accurate wage statements.  A wage statement must include the gross wages earned,  net wages earned, all hours worked, an itemized list of all deductions, dates of pay, the legal name and address of the employer, and employee information.  Failure to provide the above information may constitute a monetary penalty  owed to the employee for each violation.

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• If an employee is terminated or laid off, they are entitled to a final paycheck at the time of termination.  If an employee quits without giving advanced notice, they must be paid within 72 hours.  The final paycheck must include ALL monies owed to the employee at the time of termination, including all penalties for any prior unpaid hours worked.  Failure to timely pay wages on termination may entitle an employee to their average daily wages for every day that the wages are owed, up to thirty days of pay.

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• An employee who works a split-shift, and is required to return to work  for any reason, such as because a business is closed for certain hours in the day, is entitled to an hour of premium pay for the split-shift. 

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• Under the law tips received as part of service belong to the employee, not the employer. Under California law, an employer cannot take any part of a tip that's left for an employee. Employers must pay employees at least the California minimum wage for each hour worked, in addition to any tips they may receive.  Employees may be subject to a tip-pooling agreement, so long as no portion of the tip is provided to managers or managing supervisors, and the tip pooling agreement follows California Labor Standards.  Tips must be paid out to an employee promptly or by the next following payday if provided by a credit card.

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Further, even if an employee is classified as an exempt employee or an independent contractor, they may be misclassified by their employer and owed back pay for wage violations and overtime. 

 

If an exempt employee engages in non-exempt activities for the majority of their work day, then they are misclassified. 

 

An employee may be classified as an independent contractor for the employer to avoid taxes, but there is a presumption of an employer-employee relationship in the state of California, and a person may only qualify as an independent contractor for a narrow set of circumstances.

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If you suspect that that you are the victim of wage and hour violations, or have been misclassified, please feel free to reach out. 

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