California law requires all California employers to comply with all local, state, and federal labor laws. Employers may not plead ignorance of the law as an excuse for non-compliance since these laws generally hold employers strictly liable for violations. Thus, regardless of the intent of an employer, violations of California’s employment laws may have severe consequences. Most claims require employers to pay the attorneys’ fees and costs of a worker’s lawsuit if the worker prevails. Thus, a free consultation with the experienced employment attorneys at Moss Bollinger to determine your rights is a risk-free undertaking by any California worker who has experienced some illegal conduct by his or her employer.
The following is a list of some California employment laws that employers commonly violate:
- Misclassification of an employee as an independent contractor
One of the laws that employers have tried to usurp for decades relates to the classification of workers as either “employees” or “independent contractors.” In 2019 California passed Assembly Bill 5 (AB 5), which went into effect on January 1, 2020. AB-5 codifies a California legal decision (Dynamex Operations West, Inc. v. Superior Court) that sets the test for establishing whether an employee is an employee or independent contractor.
The test for determining whether a worker is an employee or independent contractor is as follows:
“(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and
(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.”
AB5 has significantly decreased the number of properly classified independent contractors and, in turn, increased the number of employees.
- Misclassification of regular employees as exempt
Although a company may correctly classify a worker as an employee or independent contractor, it must still determine whether this worker is entitled to overtime pay and other benefits provided on behalf of hourly employees. This decision is a dollar and cents choice for employers since an “exempt” employee under California law may be paid on a salary basis, without overtime wages, without meal and rest periods, without certain record-keeping rights, and without many of the other legal protections provided to non-exempt workers. Non-exempt employees, in contrast, may be paid on a salary basis if certain conditions are met.
- Failure to pay an employee for overtime
Claims by employees that they performed work without compensation for some period when they performed work are common. Both federal and California law require nonexempt employees to be paid overtime when the employee works more than 40 hours in a workweek.? California law goes beyond these federal overtime requirements and protections.
The usual overtime rate of pay is one and one-half the employee’s regular rate of pay (“time and a half”). In California, overtime must be paid to non-exempt employees in most occupations when the employee works:
- More than 8 hours in a workday,
- More than 40 hours in a workweek, or
- A seventh consecutive day in any workweek.?
However, an overtime rate of twice the employee’s regular rate of pay (often called “double time”) applies to hours worked:
- Over 12 hours in a workday, or
- Over 8 hours on the seventh consecutive workday in a workweek.?
- Failure to observe the law when issuing a final paycheck to an employee
The timing of an employee’s final paycheck depends on whether the worker is fired or has quit. With exceptions, a fired employee must be paid all unpaid wages earned up to and including the date of termination. A final paycheck must be given to the employee on the same day that the employee is terminated. Employees who quit and give notice at least 72 hours before their last day of work must be paid their final wages on their last day.? Employees who quit without giving any notice must be paid their final wages within 72 hours after their last day of work.?
- Retaliation against employees who report legitimate employer violations of the law
When a California employer violates the law whether related to worker safety, wages, or anything else, employees have the right to report them to the appropriate legal authorities. When this occurs, California employers may not retaliate or take any adverse action against the employee. The employee also has a right to report that violation to an employee that supervises them.? Employers are prohibited from punishing or firing employees for disclosing information about a legal violation to the government, a law enforcement agency, or their supervisor.
An employer who discharges an employee for reporting unlawful activities is guilty of wrongful termination. If you have been terminated for reporting your employer’s violations of the law, you may have a cause of action.
As a worker in California, you have many important rights that must be safeguarded around the clock. Why? Unfortunately, more than a few California employers try to work around the requirements of the law to save costs and increase profits. If you believe that your employer is violating the valuable rights possessed by all California employees, call Moss Bollinger for a free consultation to discuss your situation and rights, as well as the solutions related to asserting and defending these rights. Moss Bollinger takes great pride in holding employers accountable for workplace violations that infringe upon the legal protections afforded every California worker. Contact Moss Bollinger today at } or reach us online.