protections

Now that we know from which provisions our workers are exempt, we can determine what protections they actually receive. Both are covered by at least some portions of both state and federal law.

It is important to remember, therefore, that in any situation where both California and federal laws apply to an employee, an employer must comply with the law that is more protective of the employee. 29 U.S.C. 218(a), Aguilar v. Association for Retarded Citizens, 234 Cal.App.3d 21, 34-35 (4th Dist. 1991). Determining which law is more protective and thus which to apply demands an overview of what protections are available under each.

The Rutter Guide is a good place to return to. It provides a helpful overview of minimum wage, overtime provisions and other protections in Chapters 11-C, D, E, and F. In addition, the IWC Wage Orders each have sections on "Meal Periods" and "Rest Periods," and the Department of Labor has an FAQ page about the federal minimum wage and exceptions to it. The FLSA does not require rest or meal breaks, but does have regulations about what constitutes time that must be compensated if breaks are offered by the empoyer. (29 C.F.R. §§ 785.18, 785.19.)

I culled from The Rutter Guide a comparison of the minimum wage and overtime protections of the FLSA and California Law. The charts I created from that information (which are linked to in the previous sentence) reveal that California law provides more protective minimum wage and overtime provisions for workers.

In addition, a few cities, including San Francisco (currently $9.36/hour), impose a higher minimum wage for certain employees working within their jurisdiction. Lexis provides a free engine for full text searching of many municipal codes nationwide. And U.C. Berkeley has a list of links to searchable sites for many others. (One more, here.)

Unfortunately, full text searching in a municipal code makes it almost impossible to find what you are looking for. Since so few cities have a more protective minimum wage, the best bet is calling your local city or county counsel.

Applying these provisions to our hypothetical workers:

Summer's employer must comply with the provisions of IWC Wage Order #4. She is entitled to take meal and rest breaks as prescribed by the Wage Order. She is entitled to be paid at least minimum wage (which she is), as well as 1.5 times her normal hourly rate ($40,000/52/40) for each hour she works over 8/day or 40/week. In addition, her employer cannot require her to take comp time in lieu of overtime pay, though she may request and receive it so long as her employer complies with the provisions of Cal.Lab.C. § 204.3.

Depending on the facts surrounding the comp time Summer takes and the meal and rest periods she often skips, Summer's employer may be in violation of California law.

Gavin is exempt from the overtime provisions of IWC Wage Order #9, but he is entitled to take meal and rest breaks as prescribed by the Wage Order. Further, he is entitled not only to the state minimum wage, but also to the more protective San Francisco minimum wage (which he is receiving).

A worker whose employer has committed wage violations may be entitled to civil damages. Information about these damages is available in Chapter 11-J of The Rutter Guide. An employee who suspects a violation should contact the DLSE.