Frequently Asked Questions

In order to directly or indirectly employ a minor (a person under the age of 18 who is required to attend school, and all persons under age 6) the employer must obtain a “work permit” from the minor.  The minor can obtain the permit from his/her school or school district.  Those permits must be renewed yearly, prior to the start of the new school year.  For a minor working during his/her summer vacation, a “vacation card” work permit may be obtained from his/her school of enrollment (California Education Code Section 49111).  The minor should also supply the employer with a form issued by the Department of Education entitled “Notice of Intent To Employ Minor”.  The employer must fill out that form and return it to the Superintendent of Schools for the school district in which the minor attends school.

Although permits can be obtained for children as young as 12, they are limited to a small number of industries.  Typically the child must be at least 14 years of age to be employed.  The law differentiates in terms of hours worked and types of work allowed to be performed between 14 & 15 year olds, and 16 & 17 year olds.  When school is not in session, 14 & 15 year olds may work up to 8 hours per day and 40 hours per week; 16 & 17 year olds may work up to 8 hours per day and 48 hours per week.   The rules are different during times when the minor is required to attend school, and there are numerous exceptions and exclusions based on the type of work to be performed.  For example, minors are prohibited from working in a number of industries that are “dangerous” or “immoral”.  In addition, the rules are different for businesses owned by the parents of the minor.  Lastly, the work permit requirements do not apply to work that is not regularly scheduled and not done for a business, such as babysitting and lawn mowing.

The Industrial Welfare Commission’s (IWC’s) Orders regulating wages hours and working conditions provide the following with respect to employee breaks:

(A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period.  The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major faction thereof.  However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3-1/2) hours.  Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.

(B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.

The IWC Orders provide the following for meals periods:

(A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee.

(B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is not more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.

(C)Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked.  An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to.  The written agreement shall state that the employee may, in writing, revoke the agreement at any time.

(D) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.

(E) In places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated.

California has a daily overtime requirement for hours worked in excess of eight (8) in any one workday.  An alternative workweek in a non-healthcare setting would allow a regularly scheduled alternative workweek schedule of up to 10 hours a day within a forty (40) hours workweek without having to pay overtime for hours in excess of eight (8) in the workday.  An example of this would be a workweek that consisted of 4-10 hour days without having to pay any daily overtime for the 9th and 10th hours.

For a company to implement an alternative workweek schedule, there are specific procedures that must be following, including such things as written disclosures, meetings with employees, a secret ballot election in which 2/3rds of the employees in the identifiable work unit vote to approve such a schedule, a written agreement with those employees and an obligation to make a reasonable effort to find a work schedule not to exceed 8 hours for those employees who voted who could not work the alternative schedule.

An employer looking to institute an alternative workweek needs to so with extreme caution.  If the Labor Commissioner determines that the alternative workweek was not implemented properly, it could invalidate the election and the employer could be liable for daily overtime for hours in excess of 8 in a day for the period of the alternative workweek schedule, up to 3 years.

Yes. The IWC Orders provide that:

Each day an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half of the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay.

Yes.  While vacation is not a benefit that is required to be offered, if it is offered, the law considers this a vested benefit that accrues as the person works, and that an employee can not forfeit a vested benefit. The employee must be paid the pro-rata portion of the benefit they have accrued that is unused. Vacation is generally considered to start accruing from the time the employee starts working, but a reasonable probationary period may be excluded before an employee would begin accruing vacation.

No.  An employer is prohibited from making unilateral deductions from an employee’s final check, and a provision to deduct the balance owing at the time of termination is not allowed, even if the employee consents to it.  What you can deduct is the periodic payment you have agreed to.

At the time of separation the employer could try to make arrangements for the employee to repay any amounts still owing.

If an employer deducts more than the periodic payment that has been agreed to, the employer can be liable for waiting time penalties of a days’ pay for each day it fails to pay, up to a maximum of 30 days.

Labor Code Section 201 provides that if an employer discharges an employee, the wages earned up to the time of discharge are due and payable immediately.  Unused vacation pay becomes due and payable as wages at the time of termination.

California Labor Code Section 432.7 provides, in sum, that it is illegal for an employer to utilize the fact that an employee or applicant has been arrested, where that arrest has not lead to a conviction, in determining any condition of employment, including hiring or termination.  As a result, you cannot simply terminate someone for being arrested.  However, if you have an absenteeism policy, and the employee violates that policy as a result of being incarcerated you can terminate the employee for violating company policy.  Typically, company’s have a policy that states an employee will be terminated if they have 3 consecutive days of unexcused absences.  If your company does not have a written absenteeism policy, courts will hold you to a “ reasonableness” standard, meaning you can tolerate someone for missing work after a “reasonable” period of time, based upon all the facts and circumstances.  In general, employees who miss 3 or more consecutive days of work without an acceptable excuse (incarceration is not usually an acceptable excuse) may be terminated

Labor Code Section 202 provides that if an employee voluntarily quits without notice, wages become due and payable no later than 72 hours thereafter.  If the employee gives at least 72 hours notice of his/her intention to quit, wages become due and payable at the time of quitting.

Holding a check until company property is returned would be the same as not paying the employee within the prescribed time, subjecting the company to waiting time penalties of a days’ pay for each day it fails to pay up to a maximum of 30 days.

The courts do not allow employers a self-help remedy of withholding the employee’s check or making unilateral deductions.  The remedy available to the employer is small claims court.

There are some very limited exceptions for employees in certain industries.  Check with your Regional Director.

What must be included in the final check is all monies conceded to be owed by the employer.  This includes all wages earned up until the time of discharge or quitting, as well as any accrued but unused vacation.  If there is a dispute as to how much is owed or if a timecard was not complete, the employer should include all monies it concedes are owed.  The burden would be on the employer, if the employee filed a claim for unpaid wages or waiting time penalties, to prove there was a “good faith” dispute as to the money claimed as owed or that the employer paid all monies it could reasonably determine were owed to the employee.  If the employer is unable to meet this burden, it can be subject to waiting time penalties.

First of all, if a company has employees with pay rates that vary from day-to-day, or week to week, in their PTO policy, they should set forth the rate at which PTO will be paid.Barring that kind of foresight, if the rate varies within a pay period, the employer would be best served by taking the average rate for the workweek preceding the PTO.

However, to my knowledge, the DLSE does not have any bright line test for what the rate should be other than the standard “rate in effect at the time of the leave” rule.  I would suggest you take an average wage over any “reasonable” period of time so long as it’s not done in an attempt to unfairly reduce the rate at which the employees are paid their PTO.

No. The California Labor Code and the California Wage Orders make it very clear that it is the employer’s responsibility to maintain accurate records of their employee’s hours of work as well as all wage information.  Although the specific code section related to the record-keeping requirement does not define the term “wages”, other statutes and court decisions have defined “wages” to include vacation accrual and vacation pay.  Consequently, it is incumbent upon every employer to maintain accurate records of their employee’s wages, including vacation accrual and pay where the employer provides such a benefit.

Sick leave is a benefit generally provided to allow an employee to receive some income replacement if they miss work due to medical reasons.  While there is no requirement to have a sick leave benefit, if you do provide it, Section 233 of the Labor Code requires that you must allow an employee to use up to one-half (½) of their annual accrual of sick leave, if available, to attend to the illness of a child, parent, spouse or domestic partner of the employee.

State and federal regulations cover non-exempt employees.  If employees don’t meet a “duties” test and “salary” test, they are considered to be non exempt from overtime regulations.  California requires that non-exempt employees be paid overtime at the rate of one and one-half (1-1/2) times the employee’s regular rate of pay for hours worked in excess of eight (8) up to and including twelve (12) in any one workday, forty (40) hours in any one workweek, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in the workweek.  Overtime at the rate of two (2) times the employee’s regular rate of pay must be paid for all hours worked in excess of twelve (12) hours in any one workday and in excess of eight (8) hours on the seventh (7th) consecutive day of work in the workweek.  Federal regulations  do not provide for daily overtime, but require that overtime at the rate of one and one-half (1-1/2) be paid for all hours worked in excess of forty (40) in any one workweek.

It's not as simple as whether or not your employees have Class A drivers' licenses.  The exemption from the California Wage Orders' provisions on overtime depends on the nature of the vehicle being driven by your employees.

Under California law, employees driving the vehicles described at Title 13, Subchapter 6.5, Section 1200 of the California Code of Regulations are exempt from the overtime provisions of Industrial Welfare Commission Wage Order No. 9 which state you must pay them overtime for any hours worked over eight in a day. Those vehicles, generally are those being used in intrastate driving that have more than two axles, or are two-axle motor trucks (excluding pickups) when coupled in any combination of vehicles exceeding 40 feet in length.

Drivers engaged in interstate transportation and covered by the Department of Transportation regulations are also exempt from the overtime provisions of the California Wage Orders.  Therefore, even if your employee has a Class A license, he or she is only exempt from the overtime provisions if they are driving a vehicle for which the Class A license is required. If the driver is indeed exempt from overtime rules, then you will follow the federal overtime laws and only be required to pay them overtime when they have work more than 40 hours in a work week.

No. The minimum wage is an obligation of the employer and cannot be waived by any agreement, including collective bargaining agreements.

Yes. There is no distinction made between adults and minors when it comes to payment of the minimum wage.

Yes. In addition to paying the correct amount of compensation, employers are expected to pay it on time and in the manner required by law.
Penalties for Failure to Pay Wages Due include: Payment to the employee of a days wages earned multiplied by the number of days the paycheck was late. For example: An employee who earns $10/hr, works 8 hours/day and is due to receive a paycheck on Friday but does not actually receive it until Monday would be awarded $80 x 2 days = $160 by the labor commissioner. All wages for the normal work period for non-exempt employees come due and are payable at least twice each calendar month on days designated in advance by the employer. Employers must post a notice informing employees of paydays. Fines to the labor commissioner are $100 for an initial violation, and $200 for subsequent and/or intentional violations. In addition, the state may also impose a penalty equivalent to 25% of the amount of the wages not paid in a timely manner.

No.  If you require your employees to acquire training, you must pay for the course and for the time they spend in the training program.  The only way you can avoid paying for time spent by employees attending training programs, lectures and meetings are if all of the following criteria are met:

1.  Attendance is outside regular working hours;

2.  Attendance is voluntary:  attendance is not voluntary if the employee is led to believe that present working conditions or the continuation of employment would be adversely affected by nonattendance;

3.  The course, lecture, or meeting is not directly related to the employee’s job; training is directly related to an employee’s job if it is designed to make the employee handle his job more effectively as distinguished from training him or another job or to a new or additional skill; and

4.  The employee does not perform any productive work during such attendance.

US Dept of Labor CFR 785.27-785.31

A “No Solicitation” policy would prohibit the leafleting, but in most cases the simple act of praying at work cannot be banned unless somehow it imposes an undue hardship on the employer’s legitimate business interests.  Generally, an employer may not place more restrictions on religious expression than on other forms of expression that have a comparable effect on workplace efficiency.  As for the preaching at work, I believe there have been cases on that issue where it was found that such actions were too disruptive (after other employees complained) and were therefore banned.  The courts in these cases drew correlations to such practices as playing excessively loud music or otherwise unreasonably disrupting the workplace for other employees.

Federal law prohibits employers from discriminating against employees based on their religion.  And, court decisions illustrate that employers must allow their employees to engage in certain religious observances or practices even if they conflict with the employers’ policies, so long as the religious practice or observances due not impose an undue hardship on the employer’s business.

Although you cannot ban all religious practices in the workplace, you can adopt a policy that prohibits those practices or observances that create an undue hardship.  If you are receiving complaints from other employees about the religious activity in the workplace, you must objectively investigate the issue and make a determination as to whether or not the religious practice/observance is creating an undue hardship.  If it does not create such a hardship, then you must allow the practice/observance or you will be in violation of law and regulations pertaining to religious discrimination.

Employers are allowed to institute reasonable dress code policies for the workplace.  As part of its dress code policy, an employer may choose to ban the use of visible piercings.  Despite the occasional protest about an individual's right to freedom of expression, courts have held that the employer is entitled to control its workplace and ban certain types of clothing and other forms of adornment, including earrings or other visible piercings.