Wage Claims for unpaid wages and other labor law violations
Being paid less than minimum wage per hour.
Not being allowed to take meal breaks, rest breaks, and/or preventative cool-down breaks.
Not receiving agreed upon wages (this includes overtime on commissions, piece rate, and regular wages).
Owners or managers taking tips.
Not accruing or not allowed to use paid sick leave.
Failing to be reimbursed for business expenses.
Not being paid promised vacations or bonuses.
Having unauthorized deductions from paycheck.
Not being paid split shift premiums.
Not receiving final wages in a timely manner.
Not receiving Reporting Time Pay.
Unauthorized deductions from your pay.
Failure to provide timely access to personnel files and payroll records.
A new law, effective January 1, 2012 which gives greater protection to workers, and makes changes in the way workers are notified of basic employment information.
All private sector employers are covered unless there is a specified exception. Subject to the exceptions, as of January 1, 2012, employers are required to provide the written notice to each employee “[a]t the time of hiring.” The notice requirement was intended to apprise employees of basic information material to their employment relationship, and to ensure employees are given up-to-date employment information through notice of any changes to that information; as such, it would be a best practice for employers not only to provide the notice to new hires, but also to current employees. (Underlined portion added 1/23/12).
Workers have to receive the required notice containing specific information at the time of hire:
the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable;
allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances;
regular payday designated by the employer as required by law;
the name of the employer, including any “doing business as” names used by the employer;
the physical address of the employer’s main office or principal place of business, and a mailing address, if different;
the telephone number of the employer;
the name, address, and telephone number of the employer’s workers’ compensation insurance carrier; and
any other information the Labor Commissioner deems material and necessary.
It also requires that the employer notify the employee in writing of any changes to the information set forth in the Notice To Employee within seven (7) calendar days after the time of the changes.
No, it is a notice required by statute and is not subject to waiver (Labor Code 2804).
Yes, but there needs to be a system where the worker can acknowledge the receipt of the notice and print out a copy of the notice.
Minimum wage and overtime violations
Effective January 1, 2021, the minimum wage increases to $14 per hour for employers with 26 or more employees and $13 per hour for employees with 25 or fewer employees. The minimum wage shall be adjusted on a yearly basis through 2023.
Most employers in California are subject to both the federal and state minimum wage laws. Also, local entities (cities and counties) are allowed to enact minimum wage rates and several cities have recently adopted ordinances which establish a higher minimum wage rate for employees working within their local jurisdiction. The effect of this multiple coverage by different government sources is that when there are conflicting requirements in the laws, the employer must follow the stricter standard; that is, the one that is the most beneficial to the employee. Thus, since California's current law requires a higher minimum wage rate than does the federal law, all employers in California who are subject to both laws must pay the state minimum wage rate unless their employees are exempt under California law. Similarly, if a local entity (city or county) has adopted a higher minimum wage, employees must be paid the local wage where it is higher than the state or federal minimum wage rates.
No. The minimum wage is an obligation of the employer and cannot be waived by any agreement, including collective bargaining agreements. Any remedial legislation written for the protection of employees may not be violated by agreement between the employer and employee. Civil Code Sections 1668 and 3513
Yes. There is no distinction made between adults and minors when it comes to payment of the minimum wage.
No. An employer may not use an employee's tips as a credit toward its obligation to pay the minimum wage.
You can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner's Office), or file a lawsuit in court against your employer to recover the lost wages. Additionally, if you no longer work for this employer, you can make a claim for the waiting time penalty pursuant to Labor Code Section 203. You can also reach out to the San Diego District Attorney’s Office for more information.
If your employer discriminates or retaliates against you in any manner whatsoever, for example, they discharges you because you asked them why you weren't being paid the minimum wage, or because you file a claim or threaten to file a claim with the Labor Commissioner, you can file a discrimination/retaliation complaint with the Labor Commissioner's Office. Alternatively, you can file a lawsuit in court against your employer. You can also reach out to the San Diego District Attorney’s Office for more information.
Meal and rest break violations
Employers covered by the rest period provisions of the Industrial Welfare Commission Wage Orders must authorize and permit a net 10-minute paid rest period for every four hours worked or major fraction thereof. Insofar as is practicable, the rest period should be in the middle of the work period. If an employer does not authorize or permit a rest period, the employer shall pay the employee one hour of pay at the employee's regular rate of pay for each workday that the rest period is not provided.
Rest breaks must be given as close to the middle of the four-hour work period as is practicable. If the nature or circumstances of the work prevent the employer from giving the break at the preferred time, the employee must still receive the required break, but may take it at another point in the work period.
Yes, there is something you can do if you are an employee covered by the rest period requirements of the Industrial Welfare Commission Wage Orders. If your employer fails to authorize and permit the required rest period(s), you are to be paid one hour of pay at your regular rate of compensation for each workday that the rest period is not authorized or permitted. If your employer fails to pay the additional one-hour's pay, you may file a wage claim with the California Division of Industrial Relation’s Division of Labor Standards Enforcement (DLSE). You can also reach out to the San Diego District Attorney’s Office for more information.
No, working through your rest period does not entitle you to leave work early or arrive late.
No, your employer cannot impose any restraints not inherent in the rest period requirement itself. In Augustus v. ABM Security Services, Inc., (2016) 5 Cal.5th 257, 269, the California Supreme Court held that the rest period requirement "obligates employers to permit-and authorizes employees to take-off-duty rest periods. That is, during rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time." (citation omitted) As a practical matter, however, if an employee is provided a ten-minute rest period, the employee can only travel five minutes from a work post before heading back to return in time.
No, the court in Augustus also held that on-call rest periods are prohibited. . “[O]ne cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods.” Augustus v. ABM Security Services, Inc., (2016) 5 Cal.5th 257, 269. This court’s determination is unique to rest period on-call time and does not apply to other types of on-call issues such as on-call shifts or on-call meal periods, which are subject to different requirements and considerations.
No, under California law rest period time is based on the total hours worked daily, and only one ten-minute rest period need be authorized for every four hours of work or major fraction thereof.
No, the 10-minute rest period is not designed to be exclusively for use of toilet facilities as evidenced by the fact that the Industrial Welfare Commission requires suitable resting facilities be in an area "separate from toilet rooms." The intent of the Industrial Welfare Commission regarding rest periods is clear: the rest period is not to be confused with or limited to breaks taken by employees to use toilet facilities. This conclusion is required by a reading of the provisions of IWC Orders, Section 12, Rest Periods, in conjunction with the provisions of Section 13(B), Change Rooms And Resting Facilities, which requires that "Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours."
Allowing employees to use toilet facilities during working hours does not meet the employer's obligation to provide rest periods as required by the IWC Orders. This is not to say, of course, that employers do not have the right to reasonably limit the amount of time an employee may be absent from his or her work station; and, it does not indicate that an employee who chooses to use the toilet facilities while on an authorized break may extend the break time by doing so. DLSE policy simply prohibits an employer from requiring that employees count any separate use of toilet facilities as a rest period.
You can either file a wage claim (the Labor Commissioner's Office), or you can file a lawsuit in court against your employer to recover the premium of one additional hour of pay at your regular rate of compensation for each workday that the rest period is not provided. You can also reach out to the San Diego District Attorney’s Office for more information.
If you feel your employer is not providing you with adequate break time and/or a place to express milk as provided for in Labor Code section 1030, you may file a report/claim with the DLSE Bureau of Field Enforcement (BOFE) at the BOFE office nearest your place of employment. See http://www.dir.ca.gov/dlse/HowToReportViolationtoBOFE.htm.
The DLSE may, after an inspection, issue to an employer who violates any provision of this chapter, a civil citation ($100.00 for each violation) that may be contested in accordance with the procedure outlined in Labor Code Section 1197.1 (Labor Code Section 1033).
In addition, any employee who is a victim of retaliation for either asserting a right to lactation accommodation or for complaining to the DLSE about the failure of an employer to provide this accommodation may file a retaliation claim with DLSE pursuant to Labor Code Section 98.7
In the case of Murphy v. Cole, the California Supreme Court held that the remedy for meal and rest period violations of "one additional hour of pay" under Labor Code section 226.7 is a wage subject to a three-year statute of limitations. Accordingly, a claim must be filed within three (3) years of the alleged rest period violation. See attached Division memoranda regarding the Court's decision.
If your employer discriminates or retaliates against you in any manner whatsoever, for example, they discharges you because you object to the fact that they are not providing employees with rest breaks, or because you file a claim or threaten to file a claim with the Labor Commissioner, you can file a discrimination/retaliation complaint with the Labor Commissioner's Office. In the alternative, you can file a lawsuit in court against your employer. You can also reach out to the San Diego District Attorney’s Office for more information.
Workers’ Compensation violations
Yes, every California employer using employee labor, including family members, must purchase Workers’ Compensation Insurance (Labor Code Section 3700). If you fail to have Workers’ Compensation Insurance for your employees, it can be expensive as the DLSE is required to issue and serve a stop order/penalty assessment prohibiting further use of employee labor until you do purchase Workers’ Compensation Insurance. Effective January 1, 2011, the penalty assessed for failure to have Workers’ Compensation Insurance is based upon the greater of (1) twice the amount the employer would have paid in workers’ compensation insurance premiums during the period the employer was uninsured, or (2) $1,500 per employee. However, there are exceptions for partnerships, if the only persons performing labor are the partners and corporations where the corporate officers are the sole shareholders; in which case, the corporation, officers and directors come under the Workers’ Compensation provisions only by election.
No, under the labor law she is considered an employee. An employee is defined as someone you engage or permit to work. Even though your niece is part of your family, she is considered an employee and you, as the employer, must provide Workers’ Compensation Insurance to cover her in case of a work-related injury. In addition, you are also required to pay the minimum wage unless the employee is your spouse, parent or child and you are a sole proprietor or partnership. Corporations do not have children and therefore, no family relationship to the officers of the corporation can be exempt from these requirements.
Employers often improperly classify their employees as independent contractors to avoid paying payroll taxes, minimum wage or overtime, or complying with other wage and hour requirements such as providing meal periods and rest breaks, etc. Additionally, employers do not have to cover independent contractors under Workers’ Compensation Insurance. However, because potential liabilities and penalties are significant it is important that each working relationship be thoroughly researched and analyzed before classifying an individual as an independent contractor and not an employee. You should understand that the DLSE presumes that the worker is an employee (Labor Code Section 3357). However, the actual determination of whether a worker is an employee or independent contractor depends upon a number of factors which must be considered. Consequently, it is necessary to closely examine the facts of each relationship and then apply the law to those facts. The most significant factor to be considered is whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker, the work to be done and the manner and means in which it is performed. For further information on this subject, please visit the DLSE website at www.dir.ca.gov/dlse/FAQ_IndependentContractor.htm.
Violations of prevailing wage provisions
The prevailing wage rate is the basic hourly rate paid on public works projects to a majority of workers engaged in a particular craft, classification or type of work within the locality and in the nearest labor market area (if a majority of such workers are paid at a single rate). If there is no single rate paid to a majority, then the single or modal rate being paid to the greater number of workers is prevailing.
California's prevailing wage laws ensure that the ability to get a public works contract is not based on paying lower wage rates than a competitor. All bidders are required to use the same wage rates when bidding on a public works project. California law requires that not less than the general prevailing rate of per diem wages be paid to all workers employed on a public works project.
When the director of the California Department of Industrial Relations determines that the general prevailing rate of per diem wages for a particular craft, classification, or type of worker is uniform throughout an area, the director issues a determination enumerated county by county, but covering the entire area. General determinations are issued twice a year on February 22 and August 22.
When a particular craft, classification or type of worker is not covered by a general determination, the awarding body may request a special prevailing wage determination. Requests must be made at least 45 days prior to the bid advertisement date.
The date upon which the determinations of the director of the California Department of Industrial Relations go into effect. This date is 10 days after the issue date of the determination.
Compensation for all hours worked in excess of eight hours per day and 40 hours during any one week should be not less than one-and-one-half times the basic rate of pay. For specific overtime requirements, please refer to the prevailing wage determinations.
Prevailing wages must be paid to all workers employed on a public works project when the public works project is over $1,000. If an awarding body elects to initiate and enforce a labor compliance program, that has been approved by the Director of the Department of Industrial Relations, for every public works project under the authority of the awarding body, prevailing wages are not required to be paid for any public works project of $25,000 or less when the project is for construction work, or for any public works project of $15,000 or less when the project is for alteration, demolition, repair, or maintenance work.
Child Labor violations
(see California Department of Industrial Relations Child Labor Law Pamphlet – www.dir.ca.gov/dlse/ChildLaborLawPamphlet.pdf) for more information
Almost all minors under the age of 18 are subject to California’s child labor protections. Under the California Labor Code, “minor” means any person under the age of 18 years who is required to attend school under the provisions of the Education Code, and includes minors under age six. Nonresidents of the state who would be subject to California’s compulsory education laws if they were residents are also considered minors and are subject to all the requirements and protections of the Labor Code. [LC 1286(c)] (See Chapter 3 of this digest).
The Labor Code definition means, for example, the high school graduates under the age of 18, who are not subject to the compulsory education laws, are entirely excluded from permit requirements, work hour restrictions, and all occupational prohibitions. However, under federal regulation high school graduates may not be employed in an occupation prohibited to minors under 18 unless they have also completed a bona fide course of training in that occupation. [29 CFR 570.50] “Dropouts” are still subject to California’s compulsory education laws, and thus are subject to all state child labor requirements. (See Chapter 2 of this digest). Emancipated minors are subject to all California’s child labor laws, except that they may apply for a work permit without their parents’ permission. [FC 7050] (See Chapter 3 of this digest).
Minors must be paid at least the minimum wage and applicable overtime rates established by the California Industrial Welfare Commission. [LC 1197, IWC Orders Section 4] Employers who are subject to the federal Fair Labor Standards Act (and most are) must pay the applicable federal minimum wage and overtime rates. [29 USC 206, 207, and 214] Whenever state and federal wage standards differ; the higher wage must always be paid. [LC 1182, 29 USC 218]
Required Payment of Adults Wage Rates High school graduates or the equivalent must be paid commensurate with adults when they perform the same quantity, quality, and classification of work. This includes wage rates that are above the minimum wage. [LC 1391.2 Minors participating in Work Experience Education programs and who work between 10 p.m. and 12:30 a.m. (an extension of hours which requires the express approval of parents and school officials) must be paid at least the adult minimum wage for any work performed during those hours. [LC 1391.1] Sixteen and seventeen year olds who are permitted to work 48 hours in a week must be paid any applicable overtime pay. [LC 1391 (a) (3), IWC Orders Section 3, USC 207]
Retaliation complaints for enforcing labor rights
Any employee, who is discharged, threatened with discharge, demoted, suspended, or in any manner discriminated and/or retaliated against in the terms and conditions of his or her employment for engaging in a "protected activity" under the jurisdiction of the labor commissioner may file a complaint with the Division of Labor Standards Enforcement (DLSE). Examples of some protected activities include filing or threatening to file a wage claim with the Labor Commissioner's office, taking time off to serve on a jury, complaining about a safety or health hazard, and/or refusing to perform work that may be hazardous. For a list of the specific anti-discrimination/retaliation statutes/orders under the jurisdiction of the labor commissioner, click here.
There are specific time limits for filing a complaint for discrimination/retaliation with the DLSE. The majority of the Labor Code Sections and IWC Orders require that the complaint be filed within six months of the discriminatory/retaliatory act. However, certain Labor Code Sections have longer time periods for filing a complaint. Labor Code Sections 230(c) and 230.1 that allow employees who are victims of domestic violence to take time off from work to obtain help or relief have one year from the date of occurrence of the violation to file a complaint. Additionally, Labor Code Section 1197.5 that covers discrimination in the payment of wages on the basis of sex has a two-year period from the date of the discriminatory activity for filing a complaint. However, when an employee is discriminated/retaliated against for complaining about or reporting violations of the licensing laws relating to childcare facilities under Health and Safety Code Section 1596.881, the time period for filing a complaint is no later than ninety days after the adverse action.
Under the anti-discrimination/retaliation statutes, the remedy that is available is what is known as a "make whole" remedy. This remedy can include, but is not limited to; reinstatement of employment, reversal of a demotion, payment of back wages, reinstitution of benefits, purging personnel files of any adverse memos or letters, a cease and desist order, and the posting of a notice in the workplace.
You can file a discrimination complaint with any local office of the Division of Labor Standards Enforcement. Additionally, you can download, complete, and print the complaint form off of the Internet (English, Spanish, Chinese, Korean, Vietnamese, and Tagalog), and file your form by mailing it directly to the Discrimination Complaint Investigation Unit at:
Labor Commissioner's Office
Retaliation Complaint Investigation Unit
2031 Howe Ave., Ste. 100
Sacramento, CA 95825
Labor Commissioner's Office
Retaliation Complaint Investigation Unit
320 W. Fourth St., Ste. 450
Los Angeles, CA 90013
You can also reach out to the San Diego District Attorney’s Office for more information.
The majority of the Labor Code Statutes and IWC Orders allow six months from the occurrence of the adverse action to file a complaint with the Labor Commissioner. If you file a complaint under Labor Code Sections 230(c) or 230.1, you have one year to file from the time of the adverse action. If you file a complaint under Labor Code Section 1197.5, you have two years from the time of the adverse action. But, if you file a complaint under Health and Safety Code 1596.881, you have 90 days from the occurrence of the adverse action to file a complaint.
Underground Economy Tax Evasion
The rapidly growing underground economy costs California an estimated $9 billion in uncollected tax revenue and imposes significant financial burdens on business owners that comply with labor, licensing and payroll tax laws. Employees of business that operate in the underground economy are also affected. Working conditions often may not meet legal requirements, wages may be less than what is required by law and benefits workers are entitled to may be delayed or even denied due to an employer’s failure to properly report wages. This scheme may also shift the tax burden onto the employee.
Tax evasion is the #1 economic crime in the USA. Payroll tax fraud or evasion is committed by paying employees in cash that doesn’t get reported (“under the table”), by paying employees with checks without deductions for taxes, and by intentionally misclassifying employees as self-employed independent contractors.
Unfair Competition – law abiding employers cannot compete and lose jobs to tax evaders
Loss of Benefits – employees have no earning history or way to verify income, and cannot qualify for disability, unemployment insurance, etc.
Wage Theft – employees who abide by the law and report their earnings are forced to pay extra taxes their employer should have paid, cutting into their earnings.
Income Tax Evasion – employers and employees who commit payroll tax evasion don’t report and pay tax on the income.
Drain on the System – employees may falsely qualify for public assistance programs for which they are not eligible.
Higher taxes for law abiding businesses and every citizen of California.
Ultimate Consequence – the erosion of economic stability and working conditions for all workers.