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Minimum
wage
Although
there are some exceptions, almost all employees in California
must be paid the minimum wage as required by state law. Effective
January 1, 2002, the minimum wage in California is $6.75 per
hour. There are some employees who are exempt from the minimum
wage law, such as outside salespersons, individuals who are
the parent, spouse, or child of the employer, and apprentices
regularly indentured under the State Division of Apprenticeship
Standards. Minimum
Wage Order (MW-2001)
There is an exception
for learners,
regardless of age, who may be paid not less than 85% of the
minimum wage rounded to the nearest nickel during their first
160 hours of employment in occupations in which they have no
previous similar or related experience.
There are also exceptions
for employees who are mentally or physically disabled, or both,
and for nonprofit organizations such as sheltered workshops
or rehabilitation facilities that employ disabled workers. Such
individuals and organizations may be issued a special license
by the Division of Labor Standards Enforcement authorizing employment
at a wage less than the legal minimum wage. Labor
Code Sections 1191 and 1191.5
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Q-1.
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What
is the minimum wage? |
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Ans.
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Beginning January 1, 2002,
the minimum wage in California is $6.75 per hour.
For sheepherders,
however, effective July 1, 2001, the minimum wage was
$1,050.00 per month, with such minimum wage increasing
to $1,200.00 per month effective July 1, 2002. Wages
paid to sheepherders may not be offset by meals or lodging
provided by the employer. Instead, there are provisions
in IWC
Order 14-2001, Sections 10(F), (G) and (H) that
apply to sheepherders with respect to monthly meal and
lodging benefits required to be provided by the employer.
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Q-2.
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What
is the difference between the state and federal minimum
wage? |
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Ans.
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Most
employers in California 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;
that is, the one that is the most beneficial to the employee.
Thus, since California's current law requires a higher
minimum wage rate than does the federal law, all employers
in California who are subject to both laws must pay the
state minimum wage rate unless their employees are exempt
under California law. |
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Q-3.
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May
an employee agree to work for less than the minimum wage? |
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Ans.
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No.
The minimum wage is an obligation of the employer and
cannot be waived by any agreement, including collective
bargaining agreements. Any remedial legislation written
for the protection of employees may not be violated by
agreement between the employer and employee. Civil
Code Sections 1668 and 3513 |
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Q-4.
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Is
the minimum wage the same for both adult and minor employees? |
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Ans.
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Yes.
There is no distinction made between adults and minors
when it comes to payment of the minimum wage. |
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Q-5.
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I
work in a restaurant as a waitperson. Can my employer
use my tips as a credit toward its obligation to pay me
the minimum wage? |
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Ans.
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No.
An employer may not use an employee's tips as a credit
toward its obligation to pay the minimum wage. |
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Q-6.
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What
can I do if my employer doesn’t pay me at least the minimum
wage? |
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Ans.
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You can either file
a wage claim with the Division of Labor Standards
Enforcement (the Labor Commissioner's Office), or file
a lawsuit in court against your employer to recover
the lost wages. Additionally, if you no longer work
for this employer, you can make a claim for the waiting
time penalty pursuant to Labor
Code Section 203.
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Q-7.
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What
is the procedure that is followed after I file a wage
claim? |
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Ans.
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After your claim is completed
and filed with a local office of the Division of Labor
Standards Enforcement (DLSE), it will be assigned to
a Deputy Labor Commissioner who will determine, based
upon the circumstances of the claim and information
presented, how best to proceed. Initial action taken
regarding the claim can be referral to a conference
or hearing, or dismissal of the claim.
If the decision is to hold a conference, the parties
will be notified by mail of the date, time and place
of the conference. The purpose of the conference is
to determine the validity of the claim, and to see if
the claim can be resolved without a hearing. If the
claim is not resolved at the conference, the next step
usually is to refer the matter to a hearing or dismiss
it for lack of evidence.
At the hearing the parties and witnesses testify under
oath, and the proceeding is recorded. After the hearing,
an Order, Decision, or Award (ODA) of the Labor Commissioner
will be served on the parties.
Either party may appeal the ODA to a civil court of
competent jurisdiction. The court will set the matter
for trial, with each party having the opportunity to
present evidence and witnesses. The evidence and testimony
presented at the Labor Commissioner’s hearing will not
be the basis for the court’s decision. In the case of
an appeal by the employer, DLSE may represent an employee
who is financially unable to afford counsel in the court
proceeding.
See the Policies
and Procedures of Wage Claim Processing pamphlet
for more detail on the wage claim procedure.
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What
can I do if I prevail at the hearing and the employer
doesn’t pay or appeal the Order, Decision, or Award? |
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When
the Order, Decision, or Award (ODA) is in the employee's
favor and there is no appeal, and the employer does not
pay the ODA, the Division of Labor Standards Enforcement
(DLSE) will have the court enter the ODA as a judgment
against the employer. This judgment has the same force
and effect as any other money judgment entered by the
court. Consequently, you may either try to collect the
judgment yourself or you can assign it to DLSE. |
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Q-8.
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What
can I do if my employer retaliates against me because
I questioned him about not being paid the minimum wage? |
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Ans.
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If
your employer discriminates or retaliates against you
in any manner whatsoever, for example, he discharges you
because you asked him why you weren’t being paid the minimum
wage, or because you file a claim or threaten to file
a claim with the Labor Commissioner, you can file
a discrimination/retaliation complaint with the Labor
Commissioner’s Office. In the alternative, you can file
a lawsuit in court against your employer. |
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