Q:

Do I need an Attorney to appear before the Labor Commissioner?

A:

No, you do not need an attorney to appear before the Labor Commissioner, whether you are a company or the employee.  It is advisable for a company to consult with an attorney prior to appearing before the Labor Commissioner, to:

  • understand the company’s duty to keep records,
  • reviewing your employment and payroll records,
  • drafting the answer
  • advising what documents and witnesses you should present to the Labor Commissioner, and
  • preparing your witnesses and evidence for the hearing.  

This office represents only employers in claims by employees before the Labor Commissioner.

Q:

What is the difference between an Independent Contractor and an Employee?

A:

A simple definition is that an independent contractor is a person who has a written contract with a company (or individual) to offer services for a fee; whereas, an employee is a person who works for a company for wages. Whether a person is an independent contractor or an employee is a legal determination that involves many more factors than merely not withholding taxes and not paying workman’s compensation insurance.

Most people who provide services to a company are deemed employees.

Very few actually qualify as independent contractors.

Before classifying a person as an independent contractor, it is important to seek legal advice from an attorney as to all the dos and don’ts for a company to be able to legally call someone an independent contractor.

The company that wrongly classifies an employee as an independent contractor has all the risk, and the only one who is penalized for the wrong classification.  This can include:

  • claims for over-time wages,
  • criminal prosecution,
  • meal and rest break wages, and
  • penalties for failure to comply with the wage and hour laws; as well as
  • penalties for failing to carry workman’s compensation insurance and
  • 100% liability for injuries of the worker;
  • among many other risks of liability.

It is important that a company correctly classify an independent contractor or an employee, and the best advice is to consult with an attorney before classifying anyone as an independent contractor.

Q:

What is the California Minimum Wage?

A:

The California State minimum wage rate depends on the number of employees.

Effective Date

Minimum Wage per hour for 25 or less employees

Minimum Wage per hour for 26 or more employees
1/1/18 $10.50 $11.00
1/1/19 $11.00 $12.00
1/1/20 $12.00 $13.00
1/1/21 $13.00 $14.00
1/1/22 $14.00 $15.00
1/1/23 $15.00  

You should consult with an attorney to determine how employees are counted.  It is not as simple as you think.

There are also many City minimum wage rates that apply.  These rates are higher than the California State minimum wage rate.

Q:

In California, do I have to provide up to 12 weeks Family & Medical Leave to all my employees?

A:

In California, you have to provide an employee with up to 12 weeks of Family Leave and/or Medical leave only if:

  • You have 50 or more employees, and
  • The employee requesting the leave has worked for your company at least 1,250 hours in the last 12 months before the leave would begin.

There are several California and Federal leave acts applicable to employers in addition to the Family & Medical Leave.  You should consult with an attorney regarding the California and Federal laws concerning medical leave, pregnancy leave, and other required leaves for employees.

Q:

As a California employer, am I required to give all employees a meal break?

A:

The general rule in California is that all employees who work more than 5 ½ hours are required to have a minimum of 30-minute meal break.  The meal break is to be half-way through the shift as far as practical, and not at the beginning nor the end of a shift. An employee who works 6 hours or less may waive the meal break if there is a written waiver, signed by the employee; the written agreement states that employee can revoke their consent; and the employee has not revoked their consent.  There is also a second meal break for any employee who works 10 hours or more. There are further requirements regarding the meal break requirements, whether the meal break is paid or unpaid, employer-provided meal break areas, and the duty to keep records. Employers should consult with an attorney to understand all meal break laws and for any written waivers.

Q:

As a California employer, am I required to give all employees 10-minute rest breaks?

A:

The general rule in California is that employers are to facilitate a minimum of 10-minute rest break for all employees who work more than 3 ½ hours.  The rest breaks are to be half-way through the shift as far as practical, and not at the end of a shift. An employee who works 8 hours would have 2 rest breaks.  These are paid breaks. There are further requirements regarding the rest break requirements, employer-provided rest break areas, and what efforts an employer must take to facilitate the rest breaks.  Employers should consult with an attorney to understand all rest break laws.

Q:

As a California employer, am I required to pay all employees overtime if they work more than 8 hours in a single day?

A:

The general rule in California is that all employees are to be paid 1 ½ times their normal wage for any time they work over 8 hours in a single day.  There are some limited exceptions to this rule, such as qualified salaried employees, qualified alternative work weeks, certain industries, etc. It is important to consult with an attorney to understand all overtime laws, and any exceptions that may or may not be applicable to your company.

Q:

As a California employer, am I required to pay all employees overtime if they work more than 40 hours in a work week?

A:

The general rule in California is that all employees are to be paid 1 ½ times their normal wage for any time they work over 40 hours in a work week.  There are very few limited exceptions to this rule. It is important to consult with an attorney to understand all overtime laws, and whether any exceptions are applicable to your company.