Don’t Put Your Business at Risk: California Employment Law FAQs – Wage and Hour Edition

This entry was posted on Thursday, May 27th, 2021 and is filed under Uncategorized.

Q: I pay my employees a salary. Aren’t I exempt from paying them overtime?

Not necessarily. Under California employment law, employees are generally classified as exempt or non-exempt. Non-exempt employees are subject to California and federal laws regarding minimum wage, overtime and rest and meal breaks.  

The biggest misconception is that an employee can be classified as exempt solely based on the fact that he or she is paid a salary.  Exemption status is not based on salary alone. Learn more about California’s exemption guidelines here.

Q:  I want to hire a short term gig worker. Can I hire this person as an independent contractor?

There have been significant changes in the law that alter the way California law distinguishes between employees and independent contractors. 

California has adopted a rigid “ABC test” to distinguish an employee from an independent contractor. Under the ABC test, an individual is presumed to be an employee, unless the hiring company can prove that the worker:

  • Is free from control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
  • Performs work that is outside the usual course of the hiring entity’s business; and
  • Is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed.

Unless an individual satisfies all 3 of these elements, the worker will be classified as an employee.

There are numerous exceptions to the ABC test for various industries and professions. If an exception applies, then the test specified in the statutory exception will apply.  It is recommended that you consult with your legal counsel to make sure any workers classified as independent contractors can meet all applicable legal requirements.

Q:  What do I do if my employee calls in sick?

California’s paid sick leave law requires employers of all sizes to provide 1 hour of paid sick leave for every 30 hours worked or another approved method.  There are specific rules that allow employers to cap the accrual and use of the paid sick leave, depending on the location of the business.  Some local governments also have their own paid sick leave requirements employers must comply with, such as Los Angeles, Santa Monica and San Diego.

The California Department of Industrial Relations has published a list of some frequently asked questions about California’s paid sick leave laws. The answers offer guidance as to the Labor Commissioner’s enforcement position.

Please remember, there are now COVID-19-related supplemental paid sick leave requirements for many California workers.  This is in addition to the already existing paid sick leave requirements.  Please contact us for more information related to COVID-19 supplemental paid sick leave.  

Q: Can I combine my employees’ meal and rest breaks to give them one long break instead?

No. Employers are required to provide a separate 30-minute uninterrupted, duty-free meal break to every non-exempt employee who works more than 5 hours in a workday.   

You must also authorize and permit uninterrupted rest breaks for all non-exempt employees whose total daily work time is at least 3.5 hours. These mandatory rest breaks must be offered at the rate of 10 minutes for every 4 hours worked, or “major fraction” thereof. 

Rest breaks cannot be combined, either with each other or with meal breaks. Find more information on California’s meal and rest break laws here:

Q: How do I ensure my managing employees implement the proper employment laws?

The best way to address proper employee law management within your company is to have a written policy and employee handbook so the person tasked with enforcing the employment policy handbook is clear on the laws. An employee handbook provides employees with a clear understanding of their responsibilities, and the company’s policies and procedures.  A handbook is also useful in demonstrating that your organization strives to be compliant with all federal, state and local laws and regulations, particularly in defending against employee claims. 

KVK can provide assistance in creating and updating your employee handbook. Being proactive in the employee handbook process is important and can save you time and cost in the future.

For questions about any California labor and employment laws, please contact us to speak with any of our experienced employment attorneys.