Employer FAQs: California Wage and Hour Law

Wage and hour law evolves frequently. Because federal, state, county, and city requirements overlap and sometimes conflict, it’s best to work with employment defense counsel for guidance.

1. Which minimum wage applies to me?

Employers must pay the minimum wage based on where employees perform their work. If employees travel between sites during the week, use the highest applicable minimum wage.

2. How do I know which minimum wage applies?

Many California cities and counties maintain online resources listing current rates and jurisdiction maps. For example, the City of Los Angeles provides resources to determine whether employees fall within city jurisdiction for minimum wage purposes.

3. Can employees work 10-hour days, 4 days per week without overtime?

Not without implementing a lawful alternative workweek schedule. California imposes daily and weekly overtime as follows:

• Time and a half the regular rate of pay for:
  • Hours over 8 in a workday,
  • Hours over 40 in a workweek, or
  • The first 8 hours worked on the 7^th consecutive day in a workweek.
• Double time the regular rate of pay for:
  • Hours over 12 in a workday, or
  • Hours over 8 on the 7^th consecutive workday in a workweek.

Certain professions may be subject to different overtime rules.

4. If I pay an employee a salary, can they be exempt from overtime requirements?

Paying an employee a salary alone does not create an exemption. To qualify as exempt, employees generally must:

• Meet a specific duties test,
• Exercise independent judgment and discretion, and
• Earn at least the minimum salary threshold required under California law.

Misclassification remains one of the most common wage and hour risks for small and mid-sized employers.

5. Can I classify workers as independent contractors to avoid California wage and hour rules?

No. California’s ABC test presumes all workers are employees unless the hiring entity satisfies all three of the following conditions:

1. The worker is free from the control and direction of the hiring entity in performing the work, both under the contract and in fact;
2. The worker performs work outside the usual course of the hiring entity’s business; and
3. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Several exceptions to the ABC test exist depending on the worker’s profession, but generally, if workers provide services to the hiring entity’s clients, the exception will not apply.

6. What meal break requirements apply in California?

Non-exempt employees must generally receive a duty-free, 30-minute meal break for every work period exceeding five hours. This means that:

• For shifts exceeding 5 hours: one meal period;
• For shifts exceeding 10 hours: two meal periods;
• For shifts exceeding 15 hours: three meal periods, and so forth.

7. Are rest breaks mandatory?

Yes. California employers must generally authorize and permit paid rest breaks of at least 10 minutes (net) for every four hours worked or major fraction thereof.

8. What is the timing for taking meal and rest breaks?

A meal period must begin no later than the end of the employee’s fifth hour of work. A second meal period must begin no later than the end of the tenth hour. For example, if an employee clocks in at 8:00 a.m., the first meal period must start by 12:59 p.m. and the second by 5:59 p.m.

Rest breaks should occur as close to the middle of each work period as practicable. For an 8-hour shift, a sample break schedule is:

8:00 a.m.:        Clock in

10:00 a.m.:     First 10-minute paid rest break

12:00 p.m.:     30-minute unpaid meal break

2:30 p.m.:        Second 10-minute paid rest break

4:30 p.m.:        Clock out

9. Can employees waive their breaks?

If an employee’s total work period is six hours or less, the meal period may be waived by mutual consent. If an employee works more than 10 but no more than 12 hours, the second meal period may be waived – but only if there is mutual consent and the first meal period was not waived.

Meal period waivers should be in writing, revocable at the employee’s option, and may apply prospectively from the start of employment.

Rest breaks cannot be waived; employers must authorize and permit all required rest periods.

10. If rest periods are paid, can I require employees to remain on-site during breaks?

No. Although rest periods are paid, they must be duty-free. See Augustus v. ABM Security Services, Inc. (2016) 5 Cal.5th 257, 269: “[D]uring rest periods employers must relieve employees of all duties and relinquish control over how employees spend their time.”

11. What are the penalties for not providing compliant meal and rest periods?

If an employer fails to provide a compliant meal or rest period, the employee is entitled to one additional hour of pay at their regular rate for each workday the violation occurs. Even if an employee misses multiple breaks in a single day, recovery is capped at two premium payments per day – one for meal period violations and one for rest period violations.

12. Can I avoid a meal period penalty with an on-duty meal period agreement?

It depends. An “on-duty” meal period is permitted only when the nature of the work prevents the employee from being relieved of all duty, and there is a written, employee-revocable agreement.

“Nature of the work” is a high bar and narrowly interpreted. Factors considered include: the type of work, availability of relief employees, potential consequences of relieving the employee, the employer’s ability to mitigate those consequences through scheduling, and whether relieving the employee would damage the work product or process.