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Are you a 'worker', 'employee' or 'self-employed'?
There are three main types of working individuals: 'employees', 'workers' and 'self-employed' The definition of 'employee' and 'worker' differs slightly from one area of legislation to another, but generally, if rights apply to a 'worker' they also apply to an 'employee'.
If you are self-employed for tax purposes, you're normally 'self-employed' for employment rights purposes.
Employee
The vast majority of people in work are employees. You're classified as an employee if you're working under a contract of employment. A contract need not be in writing - it exists when you and your employer agree terms and conditions of employment. It can also be derived from your actions and those of the person you are working for. Your contract will normally define what you're expected to do.
Rights of employees
As an employee, your employer is obliged by law to deduct Income Tax and National Insurance contributions (NIC) from your salary or wages before paying them to you. You're also entitled to all basic statutory employment rights including:
• maternity, adoption and paternity leave
• the right not to be unfairly dismissed
• statutory redundancy pay
• all the rights that are given to 'workers' (below)
Worker
This is a broader category than 'employees' but usually excludes those who are self-employed. A worker is any person who works for an employer, whether under a contract of employment, or any other contract where an individual agree to do or perform personally any work or services. Workers are entitled to core employment rights and protections. The following groups of people are likely to be workers but not employees:
• most agency workers
• short term casual workers
• some freelancers
Providing any other qualifying conditions are met, all workers have rights to the National Minimum Wage.
Minimum Wage
The minimum wage in California is $7.50 per hour effective January 1, 2007 and $8.00 per hour effective January 1, 2008. (The minimum wage in San Francisco is $9.14 per hour effective January 1, 2007.) Minors and some individuals in training positions can be paid less than the minimum wage, within limits. Even employees who are paid by the piece or on commission must be paid an amount corresponding to the minimum wage for hours worked.
Meal and break periods
Employees must be given a 30-minute, unpaid meal period for every 5 hours worked in a day. Employees must also be allowed to take a 10-minute paid rest break for every 4 hours worked in a day.
Uniforms, tools, and equipments
Clothing and equipment required by the job usually must be paid for by the employer. An employer cannot subtract the cost of uniforms or equipment from the employee's pay, but the employer can call for a reasonable deposit.
Food, lodging and transportation
An employer who provides food and/or lodging to an employee cannot credit the value of these items toward the obligation to pay minimum wage without the voluntary, written agreement of the employee. Even if there is a written agreement, there are restrictions on the amounts an employer can withhold for food and lodging. If an employer provides transportation, it must pay the costs of the transportation.
Overtime pay
California law provides for daily overtime pay of 1˝ times the regular wage after 8 hours worked in a day and after 40 hours worked in a week for all non-exempt employees. An employer must also pay non-exempt employees 2 times the regular wage after 12 hours worked in a day.
Records of hours worked
Employers must keep records for each employee of daily hours worked and rate of pay. If your employer does not keep accurate records and you have a disagreement about hours worked, the Labor Commissioner will accept your own records as proof.
Holidays, vacations, and sick pay
Employers are not mandated by law to provide paid holidays, vacation, and sick days. On the other hand, if your employer has promised to give you such days off with pay or has been in the practice of doing so, you may be able to insist on getting payment as a verbal, written, or implied contract. If you get vacation pay, your employer must compensate you with all earned but unused vacation when you leave the job. This rule usually does not apply to sick pay.
Exempt employees
Independent contractors, and some professionals, executives, and administrators are exempt from minimum wage, overtime and record-keeping provisions. So are certain categories of workers, such as outside (traveling) salespeople, and some government employees, and personal attendants. The actual requirements and circumstances of the job, not the employee's label or job title, determine whether the employee is exempt and many employers call workers exempt even when they should not.
Final pay
If you are fired or laid off from your job, all wages (including earned, unpaid vacation time) should be paid in full at the time of termination. If you quit your job and give more than 72 hours' notice, all wages should be paid at the time you leave your job. If you give less than 72 hours' notice, all wages should be paid within 72 hours of your last day.
Violation of law/unpaid wages
If you think your employer has violated any of these laws or that you may be owed unpaid wages, you can file a claim with the Labor Commissioner’s office. To find the nearest office of the Labor Commissioner, look in the California government listings in your local phone book under Department of Industrial Relations, Division of Labor Standards Enforcement.
Retaliation
It is illegal for an employer to fire or single out anyone who complains about a violation of the wage and hour laws or reports a violation to the Labor Commissioner.
Illegal and Undocumented Aliens
Tip Pooling
Split Shift Differential
Misclassification
For more information, please contact Bander Law Firm.
Are you a 'worker', 'employee' or 'self-employed'?
There are three main types of working individuals: 'employees', 'workers' and 'self-employed' The definition of 'employee' and 'worker' differs slightly from one area of legislation to another, but generally, if rights apply to a 'worker' they also apply to an 'employee'.
If you are self-employed for tax purposes, you're normally 'self-employed' for employment rights purposes.
Employee
The vast majority of people in work are employees. You're classified as an employee if you're working under a contract of employment. A contract need not be in writing - it exists when you and your employer agree terms and conditions of employment. It can also be derived from your actions and those of the person you are working for. Your contract will normally define what you're expected to do.
Rights of employees
As an employee, your employer is obliged by law to deduct Income Tax and National Insurance contributions (NIC) from your salary or wages before paying them to you. You're also entitled to all basic statutory employment rights including:
• maternity, adoption and paternity leave
• the right not to be unfairly dismissed
• statutory redundancy pay
• all the rights that are given to 'workers' (below)
Worker
This is a broader category than 'employees' but usually excludes those who are self-employed. A worker is any person who works for an employer, whether under a contract of employment, or any other contract where an individual agree to do or perform personally any work or services. Workers are entitled to core employment rights and protections. The following groups of people are likely to be workers but not employees:
• most agency workers
• short term casual workers
• some freelancers
Providing any other qualifying conditions are met, all workers have rights to the National Minimum Wage.
Minimum Wage
The minimum wage in California is $7.50 per hour effective January 1, 2007 and $8.00 per hour effective January 1, 2008. (The minimum wage in San Francisco is $9.14 per hour effective January 1, 2007.) Minors and some individuals in training positions can be paid less than the minimum wage, within limits. Even employees who are paid by the piece or on commission must be paid an amount corresponding to the minimum wage for hours worked.
Meal and break periods
Employees must be given a 30-minute, unpaid meal period for every 5 hours worked in a day. Employees must also be allowed to take a 10-minute paid rest break for every 4 hours worked in a day.
Uniforms, tools, and equipments
Clothing and equipment required by the job usually must be paid for by the employer. An employer cannot subtract the cost of uniforms or equipment from the employee's pay, but the employer can call for a reasonable deposit.
Food, lodging and transportation
An employer who provides food and/or lodging to an employee cannot credit the value of these items toward the obligation to pay minimum wage without the voluntary, written agreement of the employee. Even if there is a written agreement, there are restrictions on the amounts an employer can withhold for food and lodging. If an employer provides transportation, it must pay the costs of the transportation.
Overtime pay
California law provides for daily overtime pay of 1˝ times the regular wage after 8 hours worked in a day and after 40 hours worked in a week for all non-exempt employees. An employer must also pay non-exempt employees 2 times the regular wage after 12 hours worked in a day.
Records of hours worked
Employers must keep records for each employee of daily hours worked and rate of pay. If your employer does not keep accurate records and you have a disagreement about hours worked, the Labor Commissioner will accept your own records as proof.
Holidays, vacations, and sick pay
Employers are not mandated by law to provide paid holidays, vacation, and sick days. On the other hand, if your employer has promised to give you such days off with pay or has been in the practice of doing so, you may be able to insist on getting payment as a verbal, written, or implied contract. If you get vacation pay, your employer must compensate you with all earned but unused vacation when you leave the job. This rule usually does not apply to sick pay.
Exempt employees
Independent contractors, and some professionals, executives, and administrators are exempt from minimum wage, overtime and record-keeping provisions. So are certain categories of workers, such as outside (traveling) salespeople, and some government employees, and personal attendants. The actual requirements and circumstances of the job, not the employee's label or job title, determine whether the employee is exempt and many employers call workers exempt even when they should not.
Final pay
If you are fired or laid off from your job, all wages (including earned, unpaid vacation time) should be paid in full at the time of termination. If you quit your job and give more than 72 hours' notice, all wages should be paid at the time you leave your job. If you give less than 72 hours' notice, all wages should be paid within 72 hours of your last day.
Violation of law/unpaid wages
If you think your employer has violated any of these laws or that you may be owed unpaid wages, you can file a claim with the Labor Commissioner’s office. To find the nearest office of the Labor Commissioner, look in the California government listings in your local phone book under Department of Industrial Relations, Division of Labor Standards Enforcement.
Retaliation
It is illegal for an employer to fire or single out anyone who complains about a violation of the wage and hour laws or reports a violation to the Labor Commissioner.
Illegal and Undocumented Aliens
Tip Pooling
Split Shift Differential
Misclassification
For more information, please contact Bander Law Firm.
