If you are an employee (not an independent contractor), then you have certain rights under California law with regard to wages and overtime pay. Sometimes, though, in an effort to avoid paying payroll taxes, or complying with minimum wage or overtime or other legal requirements, an employer may try to claim that an employee is an independent contractor. The best way to protect yourself from these and other employer tactics is to know your rights. In this post, our San Jose employment lawyers outline your basic rights by answering questions we are often asked about wages and overtime.
California law requires that you be paid at least twice a month, on regular paydays established by your employer. Your employer is required to notify employees of the day, time and location of payment. Overtime must be paid on the payday for the next payroll period after the period during which the overtime was earned.
As of January 1, 2016, the minimum wage in California is $10.00 per hour.
No. The minimum wage cannot be waived by any agreement, including any union agreements.
What is “overtime”?
With some exceptions, in California “overtime” is any time over eight hours in any workday or more than 40 hours in any workweek. Overtime must be paid at one-and-one-half times your regular rate of pay. Thus, if you work 10 hours in any one workday, that counts as 2 hours of overtime, even if you work less than a total of 40 hours in that workweek. Similarly, if you work 8 hours each workday, but do so for 6 days in the week, then you have worked a total of 48 hours, 8 hours of which is overtime. In addition, if you work more than 12 hours in any one workday, each hour over 12 should be at two-times your regular pay. You should also be paid double-time for any hours worked over eight hours, if you are working on the seventh consecutive day.
Do I get overtime pay for working on a holiday?
It depends. Holidays do not count as overtime, unless you will be working more than 8 hours in a day or more than 40 hours in a week. Hours worked on holidays (and on Saturdays and Sundays) are treated like hours worked on any other day of the week.
My check is smaller than I expected. What can my employer deduct from my paycheck?
Your employer can lawfully withhold amounts from your wages when he/she is required to do so by law (e.g., a wage garnishment order). Your employer may also deduct amounts that you have specifically and in writing authorized; this may include amounts for insurance premiums, benefit plan contributions, or other deductions. Additionally, certain amounts may be withheld if you are a member of a union and your union has authorized such deductions. Examples may include health, welfare, or pension contributions. Numerous items are not allowed to be deducted from your wages. If, for example, you are employed by a bar or restaurant, your employers and their agents (manager, owner) may not share or keep any portion of your gratuity/tips. Tips or gratuities may also not be used as credits against your wages.
What can I do if my employer has not paid me all my wages?
If you feel that you have not been compensated properly for all the work you have done, a San Jose employment lawyer can help. Depending on the facts of your case, we may be able to file a claim with the DLSE (the California Division of Labor Standards Enforcement) or make a claim in court to recover the wages you are rightfully owed. If your wages have been improperly withheld, you may also be able to collect “waiting time” penalties at your regular rate of pay for a period of up to 30 days. Contact us today to schedule your confidential consultation. You can reach us by phone, at 408-993-8493, or by email with the contact form on this page.
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