Question:

I recently moved here from Louisiana where I worked various jobs, including factory work, waiting tables, and harvesting crops. Louisiana has no minimum wage or overtime laws, so sometimes I was paid the “Federal minimum wage.” Are there differences between Federal and California wage laws that I should be aware of?

Answer:

Yes, there are many differences between California and Federal wage and hour laws. In fact, the longer you are in California, the more you will probably notice that California is often unique in the employment law context.

The Fair Labor Standards Act (FLSA) establishes Federal minimum wage and overtime pay rates for employees who work in the private sector and for those who work for the Federal, State, and local governments. The FLSA is enforced by the U.S. Department of Labor. Most public employees are covered under the FLSA, although there are exclusions for elected officials, volunteers, and those not subject to civil service laws.

Private employees are also covered under the FLSA if the employer is a hospital, educational facility, or governmental agency that has an annual volume of sales or business of at least $500,000 per year. Private employees may also be covered by the FLSA if their work regularly involves them in “interstate commerce.” Examples of employees who are involved in “interstate commerce” include those who produce goods that have been or will be moved across state lines, regularly make telephone calls out of state, or travel to other states to do their jobs.

In a state like Louisiana, which has no state minimum wage laws of its own, qualified private employers are covered by the provisions of the FLSA by default and must follow the FLSA minimum wage and overtime requirements. However, if the FLSA does not apply to the Louisiana employer, the employer would not be subject to any minimum wage obligation, and could pay employees any pay rate it chose.

In California, wage laws are found in the California Labor Code and the California Industrial Welfare Commission (IWC) Wage Orders, which provide for the overtime and minimum wage rates. The Division of Labor Standards Enforcement (DLSE) enforces these laws.

When state law and the FLSA conflict, private employers must generally follow the law that is more advantageous to the employee. In most cases, California wage and hour laws will prevail over federal law because California is more generous to employees. For example, the federal minimum wage is currently $5.85 per hour and will increase to $6.55 per hour in July 2008. By comparison, as of January 1, 2008 California’s minimum wage is $8.00. Additionally, under the FLSA, overtime must be paid at 1.5 times the employee’s hourly rate for hours over 40 worked in a workweek. In California, an employer must pay overtime to most non-exempt, non- agricultural, employees at 1.5 times the employee’s hourly rate for each hour worked over eight hours in a day and for each hour worked over 40 in a workweek, as well as for the first eight hours worked on the seventh consecutive day of work.

Additionally, with a few exceptions, California employers must pay double-time for 12 or more hours worked in a day, and for all hours worked over eight on the seventh consecutive day of work. The agricultural industry is an exception to the above rules.
FLSA overtime rules do not apply to agricultural employees who work preparing crops for transportation or processing within the same state. This includes most, if not all, harvest workers. By contrast, in California, agricultural employees who prepare the soil or harvest crops are paid overtime after ten hours of work in a day, and for the first eight hours on the seventh consecutive day of work in a workweek. Double-time is paid for all hours of work in excess of eight on the seventh day of work in a workweek.

Regarding the restaurant industry, under the FLSA, employers are allowed to pay tipped employees, such as waiters, bartenders and valets, a cash minimum wage of $2.13 per hour if they claim a “tip credit” against their minimum wage obligation. However, California is one of the few states that does not allow a “tip credit.” Employers are required to pay tipped employees the full minimum wage, in addition to any tips they may earn. This is a major difference for workers who rely on tips.

These are just some of the differences between California and Federal law. For more information on California wage law you can go to www.dir.ca.gov/IWC/. For federal wage law visit www.dol.gov/dol/topic/wages/index.htm.
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