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Wage Claims, Overtime & Other Employee Compensation

FREQUENTLY ASKED QUESTIONS ON MINIMUM WAGE THAT TOOK EFFECT IN 2008

Q.  What is the minimum wage?
A.  Effective January 1, 2008, the minimum wage in California is $8.00 per hour.

Q.  What is the difference between the state and federal minimum wage?
A.  Most California employers are subject to both the federal and state minimum wage laws. The effect of this dual coverage is that when there are conflicting requirements in the laws, the employer must follow the stricter standard. This means that the law that is more beneficial to the employee will apply. Since California's current minimum wage rate is higher than the federal minimum wage rate (which is only $7.25 per hour, effective July 24, 2009), all California employers who are subject to both laws must pay the state’s minimum wage rate unless their employees are exempt under California law.

Q.  What kinds of employees are affected by minimum wage increase?
A.  Aside from directly benefiting employees receiving the minimum wage, the increase in minimum wage also boosts the pay of certain classes of employees who are considered “exempt” from the overtime rules.

     Employees classified as exempt -- Executive, Administrative, or Professional employees -- must be paid a salary rate that is at least twice the state minimum wage for full-time monthly employment. The minimum monthly salary for exempt employees is now increased to $2,773.33. However, the minimum salary of employees classified as exempt under the computer professional exemption will not be affected since their minimum hourly rate set annually by the Division of Labor Statistics and Research.

     Employees who are paid on commission basis and classified under the commission sales exemption must earn 1½ times the minimum wage for all hours worked to qualify for the exemption. These employees will need to earn $12 per hour to continue to qualify for the exemption.

Q.  May an employee agree to work for less than the minimum wage?
A.  No. The minimum wage is an obligation of the employer and cannot be waived by any agreement, including collective bargaining agreements. Laws enacted for the protection of employees may not be avoided by agreement between the employer and employee. For example, in attempts to reduce the costs of wages, some residential facility operators designated some employees as “facility manager,” the idea being that the title of “manager” makes them exempt from the overtime law. The employees are made to sign an employment contract requiring them to work as caregivers almost round the clock while paying them a fixed monthly salary of $1,000 to $1,500 a month. A caregiver who is paid $1,500 per month for work of 440 hours per month (20 hours per day, 5 days a week) effectively receives $3.40 per hour – way below the minimum wage. This arrangement has been determined by the courts as a violation of the minimum wage law.

Q.  Is the minimum wage the same for both adult and minor employees?
A. Yes. The law does not make a distinction between adults and minors in the payment of the minimum wage.

Q. Can a restaurant use the tips received by a waiter/waitress as a credit toward its obligation to pay the minimum wage?
A. No. An employer may not use an employee's tips as a credit toward its obligation to pay the minimum wage.

Q.  What can I do if my employer doesn’t pay me at least the minimum wage?
A.  You can file a wage claim with the Labor Commissioner's Office, or a lawsuit in state or federal court against your employer to recover the lost wages. Additionally, if you no longer work for this employer, you can make a claim for waiting time penalty. If your claim is filed in court, you may also recover the minimum wage violation penalty ($100 for each underpaid employee for the first pay period of violation and $250 per employee for each subsequent pay periods) interest, costs, and attorneys fees.

Q.  What can I do if my employer retaliates against me because I complained about not being paid the minimum wage?
A.  If your employer retaliates against you in any manner (for example, by firing, suspending, demoting or assigning to a less advantageous position) because you complained about not being paid the minimum wage, or because you filed a claim or hired an attorney to file a claim for minimum wage violations, you may file a claim for discrimination/retaliation with the Labor Commissioner’s Office or you can file a lawsuit in state or federal court against your employer. Consult with an experienced lawyer if you believe your rights are violated in the workplace.

© Law Offices C. Joe Sayas, Jr.