If you are an employee of a California business, there are many federal and state laws in place to protect you and to ensure that you are paid fairly for your labor. However, employers will frequently – either accidentally or intentionally – underpay their employees, and they may get away with it when their employees don’t understand their rights. You deserve to be compensated for every minute you spend working! It’s important to know what wage & hour violations look like so you can recognize them in the workplace if they occur and take legal action to recover the amount you are entitled to by law.
Here are the top 5 most common wage & hour violations (with examples) that California employees experience:
- Not being paid the minimum wage
California recently raised its minimum wage; it is now $13.00 per hour for businesses with 25 or fewer employees and $14.00 per hour for larger corporations. Different counties and cities in California have their own minimum wages, but you should be paid the minimum wage that is applicable in the county where you live. All employees in the state of California must be paid the correct minimum wage, even undocumented workers who don’t have green cards. There are only some exceptions to this law (including independent contractors, camp employees, immediate family members of an employer, certain nonprofit employees, and a few others). Tips are not counted towards the minimum wage.
While the minimum wage is required by law, it is not always upheld, and failing to pay a fair minimum wage is one of the most common wage & hour violations that employees experience. A 2017 report from the Economic Policy Institute revealed that in the top 10 most populated U.S. states – California, Florida, New York, Texas, Georgia, North Carolina, Ohio, Pennsylvania, Illinois, and Michigan – 2.4 million workers lose $8 billion annually because of minimum wage violations. That’s an average of $3,300 per year for year-round workers, or nearly a quarter of earned wages. These violations affect all demographic categories, but especially low-wage workers (at a rate of 17%). If your employer has not paid you a minimum wage, you’re not alone, but you are being cheated out of what you rightfully deserve.
- Being misclassified
Misclassification is another common wage & hour violation in California. How you are classified as a worker determines the type of pay you can receive. For example, as mentioned above, independent contractors are not entitled to the California minimum wage, overtime pay, or other required benefits, but employees are. In order to save money, sometimes employers will classify employees as independent contractors. This is considered wage theft. You can tell that you’re not an independent contractor if your employment is ongoing (not set for a specific amount of time) and if your employer controls the work you do (not just the result).
Another misclassification is as an exempt employee. In California, there are two types of salaried employees – exempt and non-exempt. Exempt employees typically include executive, administrative, and other professional positions. Non-exempt salaried employees can receive overtime pay. Most of the time, exempt salaried employees are not able to receive overtime, but in order to be rightfully classified as exempt, you need to be paid twice the minimum hourly wage based on a 40-hour workweek. Your employer does not decide whether you are exempt or non-exempt; California law does, and if you have been wrongfully classified as exempt so your employer doesn’t have to pay you overtime, then you may have a legal case for compensation.
- Not being paid for “off the clock” work
In California, employers must pay employees for every minute they spend working, but employers often either require, request, or encourage employees to work “off the clock” in order to pay them less, which is illegal. “Off the clock” work is defined by California law as work that employees do for their employer that the employer knows about but does not pay them for. This could include pre-shift (preparation) or post-shift work (cleanup), completing paperwork, or working during a break. This “off the clock” work may be compensated at an employee’s regular rate of pay, but more often than not, employers who require or encourage this kind of unpaid labor are trying to avoid paying time-and-a-half for overtime.
Just this month, Apple settled for $29.9 million after an 8 year lawsuit with California store employees who were forced to undergo security bag checks “off the clock” anytime they left work. Because the employees were not paid for the time they spent doing the bag checks, they filed a lawsuit and won! If your employer is asking you to do work that you are not getting paid for, you’re the victim of a common wage & hour violation.
- Being forced to share tips unfairly or paid less because of tips
Under California law, tips are the property of the employees, not the employer. That means that employees can keep the tips that they earn. Employers can’t reduce regular wages with a tip credit – they have to pay employees the regular California minimum wage plus their tips. Employers also cannot take a portion of the tips, or pool tips with management. Tip pooling is legal in California, but only service employees can take part; supervisors and managers are considered agents of the employer and are therefore prohibited from getting any share of those employees’ tips. The tips in the pool must also be distributed fairly according to the labor of the employees. It’s important to know that California law does not allow employers to subtract credit card processing fees from tips. If your employer has committed any of the above common wage & hour violations, you can pursue restitution!
- Not being paid correctly for overtime work
Even if employers properly classify employees, they can still manage to underpay them for overtime in a few different ways. California law demands that non-exempt employees who do not have an alternative workweek schedule receive overtime pay (at one-and-a-half times their regular rate of pay) if they work more than 8 hours in a single workday, more than 40 hours in a single workweek, or more than 6 days in a single workweek. The law demands that these employees receive double their regular rate of pay if they work more than 12 hours in a single workday or more than 8 hours on the seventh day of a workweek. If your employer has forced you to do overtime work “off the clock”, has averaged the hours you worked over a single pay period instead of a single week, or has otherwise justified not paying you the correct amount of overtime pay, that is a wage & hour violation.
Every one of these practices is illegal, and victims of wage & hour violations can and should take legal action to protect their rights and recover the compensation they deserve! If you suspect that your employer is not paying you fairly, contact our experienced, aggressive California wage & hour lawyers today to schedule a free, confidential consultation and learn about your legal options!