California Minimum Wage and Exempt Employees

Last year, California raised the minimum wage from $8 per hour to $9 per hour. Wages are paid based upon your designated status: exempt or non-exempt. These designations have strict conditions as set by the California Department of Industrial Relations. Deciding whether or not you are exempt or non-exempt can be confusing, as the type of work performed and the location of the work can affect the category you fall into. If you think you have been wrongly categorized, seeking the advice of an employment law attorney such as myself can help clear up the issue.

In general, a non-exempt employee is paid an hourly rate and qualifies for over-time and meal breaks. An exempt employee is often paid a set salary per month; meaning that no matter how many hours they work, their pay remains the same. Overtime does not apply, nor do other wage requirements, except one: exempt employees must be paid a monthly salary equivalent equal to no less than two times the state minimum wage for full-time employment, as defined in Labor Code 515(c). 

Congratulations! If you were exempt and making twice the state minimum wage, you should be earning a minimum of $37,440 per year as of July of 2014. In January of 2016, the minimum wage will go up to $10 per hour, meaning you would earn $41, 600 annually.

Are you classified as exempt and getting paid less than the minimum? Employers will sometimes classify employees incorrectly to avoid having to pay overtime and paid meal breaks. There are penalties to the employer for improper payment, including allowing the employee to recover wages. If you are concerned you have been paid incorrectly, please call our offices to go over your classification.

Paid Lunch Breaks

Paid lunch breaks, do you know if you have been getting your full legal meal break? Does your employer owe you money for your breaks? Read the following situation that appears commonly in the workplace:

Jennifer has recently started a job in a small gift shop. She’s excited to have a decent paying job with good hours, and Carla the owner seems like a great employer.

Jennifer has just finished her morning shift and is 15 minutes into her lunch break. She has to eat in a small room in the back, because Carla has requested she be close by to assist her if more customers come into the shop.

Carla pops her head into the room. “Jennifer, I really need you to come out and help some customers while I ring up some purchases for another customer.”

“I’m right in the middle of my lunch, can you give me a couple minutes to finish eating?”

Carla gives Jennifer a disappointed look. We sometimes have to put aside our needs to assist the customer. I thought you were a team player and customer service oriented. Was I wrong?”

Jennifer feels guilty, puts down her lunch and goes into the shop to assist customers.

When the customers leave, Carla states, “You have 15 minutes left on your lunch. Go ahead and finish, then come take over the front.”

Simple situation: an owner and non-exempt employee providing customer service when it’s needed, despite interrupting a designated meal break. Is this so wrong? In fact, it is. There are several issues with the above scenario that are illegal in the eyes of the Labor Board. Let’s take a look:

California Labor Code section 512 states that “an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes.” The employer satisfies this obligation if: (1)   it relieves its employees of all duty, (2)   relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and (3)   does not impede or discourage them from doing so.

Firstly, according to the California Labor Code section 512:

The employer satisfies this obligation if: (1)   it relieves its employees of all duty 2)   relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break

On-duty meal period counted as time worked and permitted only when nature of work prevents relief from all duties and there is written agreement between parties. Employee may revoke agreement at any time.

While Jennifer may have verbally agreed to eat on-site to be available, Carla and she need to have the agreement in writing AND Jennifer should be paid during her meal break if she has to work. Clearly, Carla did not relieve Jennifer of her duties, nor relinquish control of her activities. The nature of the work also would have to be such that Jennifer could not go off-site. The exemptions for these jobs are defined by the labor board, not Carla.

Secondly: The third stipulation of section 512: (3)   does not impede or discourage them from doing so.

Carla’s comments regarding Jennifer’s reluctance to interrupt her lunch break could be construed negatively by the labor board. Carla has a position of power over Jennifer and is using this position to question Jennifer’s dedication to her job in order to get Jennifer to comply with her wishes. Employers are also not allowed to retaliate against an employee who asserts their rights in the workplace. Retaliation could include: firing the employee, harassment, complaints on their record, etc.


Carla tells Jennifer she can complete the remainder of her lunch break now that the customers are gone. This is a clear violation of the second stipulation of section 512: The employer satisfies this obligation if: (2)   relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break,

Jennifer’s 30 minute lunch break should begin again with a NEW 30 minutes. It doesn’t matter if her lunch was interrupted during the first 5 minutes or at 25 minutes, she would get an additional 30 minutes once she resumed her break.

Remember regarding meal breaks:

      1. If you work over 5 hours a day: 30 consecutive minutes for meals or any other purpose. You cannot be told to stay on-site unless: the nature of your work prevents relief from all duties (classification determined by the labor code), or you have have a written agreement to be on-duty over your break and be paid your hourly rate. You may also agree with your employer to waive the meal time if you are working no more than 6 hours in the workday.
      2. If you work over 10 hours a day: two meal breaks of 30 consecutive minutes are to be provided. You can agree to waive the second break only if your employer agrees and you do not work more than 12 hours.

Proven violations of these rules can result in the employer paying an hour’s wage for every lunch break that was not compliant with the labor code. There are several industries that do not fall under these rules, consulting with an attorney will help you determine if your rights have been violated. But don’t wait too long, there are also time limits for filing.