Employee

HERE’S WHAT YOU NEED TO KNOW ABOUT LAWS FOR EMPLOYEES IN CALIFORNIA
Employee

First, be sure you are an “employee”

You should make sure you really are an “employee” rather than an independent contractor aka “freelancer.” If you are an independent contractor, most employment laws do NOT apply to you. See our Freelancer/Independent Contractor page for more.

Do employment laws apply to all employers?

No. Most employment laws only apply to employers with at least 5 employees.1see for example, California Fair Employment and Housing Act, Govt C §12926(d); Jennings v Marralle (1994) 8 C4th 121, 132, But the following laws apply to basically ALL employers

  • Minimum wage2see Industrial Welfare Commission Minimum Wage Order 2014
  • Protection against harassment, including sexual harassment3CA Govt Code Sec 12940(j)
  • Requirement of employers to have workers compensation insurance

Do employment laws apply to interns?

Most employment laws apply to paid interns. As for unpaid interns or volunteers, most employment laws do NOT apply, except for anti-discrimination law. So unpaid interns and volunteers are protected from discrimination (see below).4CA Govt Code Sec 12940(c)


KEY LAWS TO KNOW FOR EMPLOYEES IN CALIFORNIA

1. Minimum Wage

What is the minimum wage?

Throughout the city of LA, Santa Monica, Pasadena, Malibu, and unincorporated L.A. County, minimum wage is currently $12/hr for employers with 26 employees or more, and $10.50/hr for employers with 25 employees or fewer. This will increase to $15/hr by 2020.

In West Hollywood, minimum wage is currently $12/hr for employers with 26 employees or more (except non profits). For employers with 25 employees or fewer, and for non profits, minimum wage is currently $10/hr, but this will increase to $12/hr in 2018.

Hotel minimum wage: For Los Angeles and Santa Monica, the current minimum wage for hotel employees is even higher, at $15.66/hr.

In most of the rest of California (except for a few cities where it is higher), minimum wage is currently $10.50/hr for employers with 26 employees or more, and $10/hr for employers with 25 employees or fewer5Cal Labor Code Sec 1182.12, and will go to $15/hr by 2023.

See here for a full list of cities and counties which have a higher minimum wage than their state minimum wage.

Do “tipped employees” have a lower minimum wage and do tips count towards the minimum?

In CA there is no separate minimum wage for “tippedBarista rights employees.” Tips may not be counted towards min wage that your employer must cover, and tips belong to you as the employee (but you may be required to pool tips with other employees, as long as employer does not get any of the tips).6Cal Labor Code Sec 351; Henning v. Industrial Welfare Com. (1988) 46 C3d 1262 See Dept of Industrial Relations for more.

If I am in sales and being paid solely on commission, how does minimum wage work?

If you are doing sales as an independent contractor (see above), minimum wage probably won’t apply. If you are an employee paid solely on commission, you are entitled to at least minimum wage. Also, your employer may not ask you to do work unrelated to selling. This would violate minimum wage laws since you are essentially uncompensated for this work.7Balasanyan v Nordstrom, Inc. (SD Cal 2012) 913 F Supp 2d 1001

Are there any exemptions from minimum wage?

A few types of employees do NOT need to be paid min wage, including if you do outside sales; where the employer is your parent, spouse, or child; or where you are participating in a national service program such as AmeriCorps.8Industrial Welfare Commission Wage Order Nos. 1–2001—15–2001, §§1(C)–(E), 4(C); 8 Cal Code Regs §§11010–11150, §§1(C)–(E), 4(C)

Can I waive my right to minimum wage?

No.9Cal Labor Code Sec 219.

2. Overtime pay

When do the overtime laws apply, and what does “exempt” mean? 

Unless you are exempt (see below), you are entitled to overtime pay (1.5 times your regular rate of pay) if you work more than 40 hours in a week or more than 8 hours in a day.10Cal Labor Code Sec. 510

Farmworkers: Overtime currently works a bit differently for agricultural workers. They are entitled to overtime after 10 hours in a day or 60 hours in a week. But they will move to the regular overtime rules by 2022.11AB 1066

Exempt” means exempt from overtime laws. You are exempt if you earn a monthly salary equivalent to at least 2 times the state minimum wage for full-time employment AND your job is executive, administrative, or professional in nature (“white collar” job).12Cal Labor Code Sec. 515(a)

3. Vacation time and other leave

Is my employer required to give me vacation time?

No. In California, employers are not required to give employees any vacation time, either paid or unpaid. But IF an employer does decide to provide vacation time, there are certain rules it must follow.

Am I entitled to paid time off if I get sick? Or to take care of a family member?

If you have worked for an employer for at least 90 days, then you probably qualify to be able take time off to care for yourself or family members, and still get paid for it. See details here.

4. Privacy

What are my privacy rights with regard to my employer?

In California, whether you are an employee or prospective employee, your (prospective) employer may not require or request you to disclose your username or password for any social media, emails, texts or other similar communication. Your employer also may not ask you to access these in their presence so they can see it.

Exceptions: your employer may do these things if part of an investigation into misconduct, or if necessary to access an employer-provided device.13Cal. Labor Code Sec 980

5. Free speech

Is my employer allowed to restrict my right to use my personal social media on my own time?

In some ways, yes. If you complain about or say bad things about your employer on Facebook, etc., they can probably legally fire you.  But you DO have the right to use social media for the purpose of getting coworkers to join together to address work-related issues and share information about pay, benefits, and working conditions.14National Labor Relations Act

NOTE: This applies whether you are in a union or not. But BE CAREFUL here. If you just complain about your employer on social media without any intention of getting your coworkers together, this activity may not be protected.

And you DO have the right to speak out politically, except when your posts have negative implications for your employer or when your employer’s restrictions on posting relate to your job. For example, journalists may be prohibited by their employer from volunteering for political campaigns, or participating in political marches.

Posting about your employer anonymously is probably fine, although it’s possible that your identity could be later revealed. However, employers may NOT require that you identify yourself when posting.15Boch Imports (2015) 362 NLRB No. 83; §8(a)(1) of the National Labor Relations Act (29 USC §158)

Can my employer prohibit me from participating in political activity on my own time?

As explained above, your employer generally may NOT restrict your right to participate in political activity, such as posting on social media, marching, etc. But there are exceptions, such as when your activity is related to your job or negatively implicates your employer.

Is my employer allowed to prohibit me from revealing my salary?

NO. Under federal law you have the right to discuss your salary with others, and your employer is legally prohibited from doing anything to retaliate against you for doing so.16National Labor Relations Act

6. Discrimination

Is it illegal for my employer to discriminate against me? 

In California, employers are prohibited from engaging in any actions related to employment where the actions are on the basis of: race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, and sexual orientation as well as pregnancy, childbirth, or related medical conditions.17Cal Govt Code Sec. 12926(k), (n), 12940(a) 

Prohibited discrimination even includes actions based on a perception that you may have any of the above characteristics or that you are associated with a person who has, or is perceived to have, any of those characteristics. 18Cal Govt Code §12926(n)

Employers are also prohibited from taking into consideration in hiring: any arrests that did not result in a conviction; or convictions that were dismissed or “sealed” by a court; or any involvement with a juvenile court; with some exceptions. But health facilities employers may use information about arrests for certain crimes.19432.7 of the Labor Code
What is my prospective employer allowed and not allowed to ask me before hiring me?
In general, they can’t ask you anything that would reveal any protected categories above.

Does an employer need to pay the same amount to men and women?

Employers must specifically pay male and female workers the same wage for the same job, with some exceptions.20Section 1197.5 of the Labor Code

7. Harassment

As an employee in California, if you are harassed or bullied on the basis of any of the protected categories listed in “Discrimination” above, you may have a claim against your employer. 21Cal. Govt Code §12940(j)(1),(3) You also have the right to protection against sexual harassment by your employer, regardless of the basis.22Cal. Govt Code §12940(j)(1),(3); also see federal law at 42 U.S. Code Sec. 2000e-2 But in general, an employer is not necessarily violating employment law for generalized bullying or harassment that is unrelated to a protected category.

8. Protection against retaliation/ “Whistleblower” laws

In California, employees that speak out against employer violations of law have strong protection against retaliation by employers.  If your employer fires you or takes other negative action against you in response to your “blowing the whistle,” you can sue for the wages and benefits you would have earned had you not been fired (and possibly more damages, depending on the situation).23Cal. Labor Code Sec. 98.6

Further, California protects you even if you haven’t take any action yet! If your employer fires you or takes other negative action based on a mere FEAR that you will file a complaint, you can sue the employer.24Lujan v. Minagar (2004) 124 CA4th 1040

9. Intellectual property

Who owns the rights to work I create during my employment?

Often your employer will have you sign an agreement granting them all rights to any potential intellectual property you could possibly create during the employment relationship, including copyright, trademark, and patent. So check for this first. However, even if you’ve signed such an agreement, the law says you still own any intellectual property you create outside of work hours, not using your employer’s equipment, and not relating to the employer’s business.25Cal Labor Code Sec. 2870

If there is no employment agreement: work you create that you were specifically hired to do is probably your employer’s intellectual property, NOT yours.26courts have interpreted Labor Code Section 2860 to mean that inventions which the employee was “hired to invent” belong to the employer, even when there is no express assignment. See Gen. Elec. Co. v. Wilkins, No. CV-10-0674 LJO JLT, 2012 WL 3778865 (E.D. Cal. Aug. 31, 2012) However, inventions or other works you create outside the scope of what you were hired to do are likely your intellectual property, even if it’s related to your employer’s business.27Board of Trustees v Roche

Clearly it’s a complicated area of law, so check with a lawyer for your situation. For more on copyright law in particular, check out our Copyright page.

10. Non compete

Can my employer prevent me from leaving and going to work for a competing company?

No, in California, an attempt by an employer to prevent a former employee from going to work for a competing company, such as by a “non compete” provision in an employment agreement, is invalid.28BPC 16600 The one main exception is that an owner of a business, as part of selling his/her ownership in the business, may agree to not carry on a similar business in the geographic area.29BPC 16601, 16602

However, this does not mean you can use confidential and proprietary information (aka “trade secrets”) you obtained from performing services for one company to your own benefit or for the benefit of another company. A related concept is that a company you perform services for may prohibit you from “soliciting” their clients, through a “non solicit” or “non solicitation” provision. But if the clients contact you on their own, the company can’t prevent this.

11. Taking action with other employees to improve working conditions

You have the right to organize co-workers to take actions with the goal of improving the terms and conditions of your employment. A single employee may act alone if he or she is acting on behalf of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.30National Labor Relations Act You do NOT need to be in a union to exercise this right.

12. Workers Compensation

If you are hurt on the job, you may be entitled to compensation from your employer’s workers compensation insurance, which all employers are required to have.31Labor Code 3700 See more here.

13. Taxes

Employers are required to send you a copy of a W-2 form by Jan 31 for the prior year’s income. The W-2 says how much that employer paid you in that year, and how much they took out in taxes.

14. Smoking

It is illegal to smoke in any enclosed space at a workplace.32CA Labor Code Sec 6404.5

15. Manufacturing

Is it legal to require employees to manufacture goods at home?

Yes, except for certain goods, including: food or drink or goods used in connection with serving them; clothing; toys and dolls; tobacco; drugs and poisons; bandages and other sanitary goods; explosives, fireworks, and similar items; goods that are harmful to the health or welfare of those who make them or that would make it unreasonably difficult to maintain or enforce existing labor standards.33Labor Code 2651

BUT the employer must get a special license, and the employee must get a special permit.

EXERCISE YOUR RIGHTS AS AN EMPLOYEE

California has very favorable laws for employees, but they can be complicated. If you feel your rights have been violated, we highly encourage you to find an employment lawyer. Many employment lawyers offer free consultations, and many even agree to be paid solely as a percent of your case payout; so don’t hesitate to give them a call!

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