Labor Law FAQ

Wrongful Termination

+ What is wrongful termination?

Wrongful termination is a misnomer. It does not mean that your boss fired you for a mean reason, but rather that the firing violates fundamental public policy.

Overtime Pay

+ When does overtime start?

All non-exempt, hourly employees should be paid overtime for working more than 40 hours in a single week under both California law and federal overtime laws. Under California law, but not under the Fair Labor Standards Act, employees are also entitled to overtime pay when they work more than 8 hours in a single day or 7 days in a row in the same workweek.

+ Does the overtime clock reset at midnight?

Although it does not make too much sense, the rule is that the clock can reset at midnight and employers do not need to pay employees overtime for continuing to work. The key question, however, is how the company defines a workday. If the company defines its workday for the purpose of cheating employees out of overtime, the clock cannot reset and this is a violation of the California Labor Code.

+ What is the difference between Federal & State overtime pay laws?

Under federal overtime laws, also known as the Fair Labor Standards Act (FLSA), employers are only required to pay employees overtime for working more than 40 hour workweek. Under the California labor code, in contrast, employers must pay employees overtime not only when they work more than 40 hours in a week, but also 8 hours in a day or 7 straight days in the same workweek.

+ When does "Double Time" start?

“Double time” only applies to California law and it refers to when a non-exempt employee is getting paid an overtime rate of twice their regular rate of pay. A non-exempt employee gets paid double time for every hour past 12 in any workday, and every hour past 8 on a seventh consecutive workday.

+ Does overtime apply to non-residents?

As it stands, in addition to protecting CA residents, CA overtime laws apply to:

(1) Non-residents

(2) Who perform work in California on a full-time basis

(3) For California-based employers

Some on unresolved issues include whether these provisions include: part time basis as opposed to a full time basis; a non-California-based employer as opposed to a California-based employer; and whether meal and rest breaks also apply to non-residents as it relates to these provisions.

Meal & Rest Breaks

+ Who do meal and rest breaks apply to?

Meal and rest breaks apply to non-exempt employees.

+ How often must my meal breaks be given?

You must be given a 30 minute meal break for every work period that exceeds five hours. A second meal break (also lasting at least 30 minutes) must be granted on workdays that exceed 10 hours.

+ When are my meals breaks unpaid?

Meal breaks may be unpaid only if:

1) They are at least 30 minutes long 2) Your are relieved of all work obligations 3) You may leave the premises to take the meal break

+ When can I waive my meal break?

You can waive your meal break when your total workday amounts to no more than 6 hours.

+ On workdays exceeding 10 hours, can I waive both meal breaks?

No. However, you can waive your second meal break only if:

1) You did not waive the first meal break 2) There is mutual consent between the you and your employer 3) Your total workday is less than 12 hours

+ What is an "on duty" meal break?

An “on-duty” meal break is when:

1) The nature of your work does not allow you to be relieved of all work obligations 2) Is agreed to in writing by the you and your employer.

All “on-duty” meals breaks must be paid and you can revoke them at any time.

+ How often must my rest breaks be given?

A 10 minute rest break must be given for every work period that exceeds 4 hours (and the employees total work period is at least 3.5 hours)

+ When are my rest breaks unpaid?

Never. Rest breaks are always treated as time worked and you must be paid as such.

+ Can I combine my meal and rest breaks?

No, employees may not combine meal and rest breaks under any circumstances.

+ Can I use my meal or rest breaks at the beginning or end of their shift?

No, this is also strictly prohibited. For example, you may not use your breaks to come to work 30 minutes late or leave 30 minutes early.

+ Who is responsible for making sure a meal or rest break is taken? Me or my employer?

Ultimately, it is your responsibility to take the rest break once your manager has given you the opportunity to do so. Your manager does not have to ensure that you take it.

+ What are the consequences of failing to provide me a meal or rest break?

If an employer fails to provide a meal or rest break, they are subject to owe you an hour of pay (at the your reguar rate of pay) for each day a violation occurs. You are only allowed to recover for one meal violation per day and one rest violation per day. You can recover hours of pay for up to three years worth of violations (if they had been occuring for that long).

For example, if an employer fails to provide you both meals breaks in one day, you can only recover one hour of pay for that day. Simillarly, if the employer failed to provide two rest braks in one day, you can still only recover one hour of pay. If the employer fails to provide you with 2 meals breaks and 3 rest breaks in one workday, you can only recover 2 hours of pay (an hour for one missed meal break and an hour for one missed rest break). You can only recover for one of each violation each day it occurs.

Exempt vs. Non-Exempt

+ What is an exempt and non-exempt employee?

Non-exempt employees are entitled to overtime pay for all hours worked beyond 40 in a given workweek. On the other hand, exempt employees are not entitled to any overtime compensation and are required to fulfill their duties regardless of hours worked.

+ Who determines which employees are exempt or non-exempt?

The law ultimately establishes who is exempt vs. non-exempt. However, for statuses not clearly established by law, the human resources Classification Specialist will determine the FLSA status of certain job positions. In California, the Labor Commissioner will examine the work performed by the employee to determine whether he/she is exempt.

+ So how does the law (or the Labor Commissioner) determine which employees are exempt?

The law uses two tests:

(1) The salary test; and (2) The job duties test.

Employees must pass both tests to be classified as exempt.

+ What is the "salary test"?

The salary test states that in order to be exempt, you must be getting paid at least $33,280 per year (under federal law it is $23,600). If you are getting paid less than that amount, then you fail the salary test and should be classified as non-exempt.

More importantly, you must also be getting paid on a true salary basis. This means that all your paychecks are the same regardless of how much work you performed that pay period. In other words, you do not get paid less for working less than usual. If you get a lesser paycheck for a week where you performed less work, then you are not getting paid a “true salary”.

You must be paid a true salary of at least $23,600 to be correctly classified as exempt.

(note: some occupations have different salary requirements in order to be classified as exempt)

+ So getting paid a salary does does not automatically make me exempt?

Correct. Getting paid a salary does not automatically make you an exempt employee.

How Your Job Duties Determine Your Exempt Status

+ What exactly is the "job duties" test?

The job duties test refers to when the Labor Commissioner closely examines the nature of the work being performed by the employee. All work performed by an employee can be either classified as “exempt duties” or “non-exempt duties”. Within the job duties analysis, important issues are how much time is being spent performing exempt duties. Also, what is realistically required of the job itself? Generally, an employee must be primarily engaged in performing exempt duties to be correctly classified as exempt (spends more than 50% of their work time performing exempt duties).

+ What does it mean to be "primarily engaged" in exempt duties?

As discussed in the question above, primarily engaged in exempt duties generally means “spending more than 50% of your work time performing exempt duties”. If you are performing non-exempt duties more than half of the time you’re working, then you should be classified as non-exempt.

+ Does my job title mean anything in determining my status as exempt or non-exempt?

No, your job title ultimately holds no weight in determining your exempt status if it is established that you are primarily engaged in non-exempt duties. For example, you can have an impressive job title such as CEO or General Manager, but if you are performing non-exempt duties (e.g. the typical job duties of a store clerk) then you should be classified as non-exempt and be getting paid overtime!

+ So what distinguishes "exempt" duties from "non-exempt" duties?

Exempt duties involve customarily and regulalry exercising independent discretion and judgment involving matters of consequence or real and substantial significance to the policies or general operations of your business or customers.

Cusomarily and regularly: This phrase refers to the frequency with which you’re exercising indepenedent discretion and judment in your daily activities. It does not have to be constantly but still must be more than an occasional occurence.

Exercising independent discretion and judgment: This means that you must have the power to compare and analyze different possible courses of action and make a decision after carefully considering those options. This power must also be free from immediate supervision although it can be in the form of a reccomendation that is subject to a superior’s final authority however it still must pertain to important matters.

Exericsing independent discretion and judgment is different from choosing between which prescribed procedures to follow — the latter is not truly exercising this power.

This is a very confusing and heavily litigated aspect of detecting missclassifications (employees classified as exempt that should be classified as non-exempt and therefore receiving overtime). It would be wise to contact an employment attorney if you are unsure if your job duties are exempt duties or non-exempt duties.

+ I still don't understand what it means to exercise independent discretion and judment...what does this mean?

As recommended in the question above, if you are unsure if your daily tasks have you exercising independent discretion and judgment (and therefore performing exempt duties), then you should contact an employment attorney for clarification. The interpretation of its meaning can vary on a case-by-case basis as many companies and occupations are unique. Most labor attorneys offer free cosultations and can be very helpful in explaining this issue at no cost. This is a key issue in determining whether you have been misclassified as exempt. If you find yourself spending most of your workday following standard operating procedures or other prescibed methods of performing tasks AND are not paid overtime, you may be entitled to thousands of dollars of backpay.

+ What is meant by Executive Exemption, Adminstrative Exemption, Professional Exemption, etc.?

All exempt employees fall under one of these main exemption categories:

  • Executive Exemption
  • Administrative Exemption
  • Professional Exemption
  • Computer Professional Exemption
  • Outside Salesperson Exemption
  • Commissioned Inside Salesperson Exemption
  • National Service Program Participant Exemption

Within each of the main categories are definitions, decsriptions, and examples of the type of work that constitutes exempt duties. In addition to their own unique requirements, all of these categories still require that the exempt employee pass the salary test AND exercise independent discretion and judgment in performance of their work.

+ What are some examples of exempt duties under the Executive exemption?

Many Executives that are correctly classified as exempt:

  • interview and train employees
  • set and monitor their employees’ work schedules and pay rates

  • evalute their employee’s production and efficiency

  • discipline their employees

  • determine what kind of work should be performed

  • deal with their employes’ complaints

  • determine what kinds of materials and merchandise should be used in performing the work

These are only a few common examples of exempt duties that an executive peforms. Remember that all categories of exemption require that the exempt employee pass the salary test AND exercise independent discretion and judgment in performance of their work.

+ What is a "working manager"?

A working manager refers to someone who has some managerial responsilities and a managerial title but is mostly engaged in nonexempt duties. This is a very common misclassification and is often found in restuarants, stores, motels, and service stations.

+ How would I fall under the Professional Exemption?

The professional exemption is broken up into sub categories: Licensed Professionals; Learned Professionals; and Artistic Professionals.

In addition to each of these category’s unique requirements, ALL require that the exempt employee pass the salary test AND exercise independent discretion and judgment in performance of their work.

Licensed Professionals: This category refers to being licensed to practice any of these professions: accounting, medicine, law, optometry, architecture, engineering, teaching, and dentistry.

Learned Professionals: This category refers to professions that require a type of advanced degree or education in a specific field (e.g. B.S. in Biology) and can be short of a license. The degree must be attained at higher than a high school level. Additionally, the job itself must allow the employee considerable freedom in carrying out their tasks. In other words, the employee must have a lot of control over how/when the job is performed and he/she also generally controls the work hours.

Artistic Professionals: This category generally refers to people working in a recognized artistic field (e.g. music, writing, theatre, graphic arts, etc.) It is very uncomon for people to qualify for this exemption as most people working in an artistic field are self-employed and exercise significant control over their work hours and the nature of their work.

Remember, in addition to each of these cateogory’s unique requirments, ALL categories of exemption require that the exempt employee pass the salary test AND exercise independent discretion and judgment in performance of their work!!

+ How would I fall under the Computer Professional Exemption?

The Computer Professional exemption has several requirements:

1) You must be getting paid an hourly rate of at least $39.89 per hour OR a minimum annual salary of $81,026.25 per year.

2) You must be primarily engaged in any of the following duties:

  • applying analysis techiniques/procedures and meeting with users to determine hardware/software/system specifications.

  • developing, designing, modifying, or creating computer systems or programs. This can also be in prototypes be based on the design specifications.

  • testing, creating, or modifying computer programs.

3) You are highly proficient in the application of specialized information to software/hardware for operating systems.

You ARE NOT exempt under the Computer Professional Exemption if:

  • You are still a trainee and learning to become proficient in the above-mentioned required skills.

  • You are not skilled enough to work without close supervision.

  • You create images or special effects for use in movies, television, or theatre.

  • You write material for labels, instruction manuals, descriptions, etc. that will be read by consumers of computer related products.

  • You work in the manufacture, repair, or maintenance of computer hardware.

Remember, you still must pass the salary test AND exercise independent discretion and judgment in performance of your work.

+ How would I fall under the Outside Salesperson Exemption?

To be exempt under the Outside Salesperson exemption, you only need to satisfy two requirements:

1) You must be at least 18 years old

2) You must spend more than half of your work time doing sales away from your workplace

Under California law, exempt work for an outside salesperson is narrowly defined to include duties such as:

  • selling items (tangible or intangible)

  • securing orders or contracts for products/services

It is NOT meant to include duties such as:

  • delivery

  • repair

  • maintenance

  • service calls

The salary test does not apply to the Outside Salesperson Exemption!