Minimum Wage Protections in California

    What is the minimum wage?

    Minimum wage laws protect employees by making sure that employers pay a minimum hourly rate for all the hours that employees work.

    In California, the state minimum wage in 2021 is $14 if you work for an employer with 26 or more employees, and $13 an hour if you work for an employer with 25 or less employees. Many cities, including Los Angeles, San Francisco, and San Jose, have higher minimum wages.

    In 2022 minimum wage will be $15 if you work for an employer with 26 or more employees, and $14 an hour if you work for an employer with 25 or less employees.

    By 2023, all employers, regardless of size will need to pay their employees a minimum wage of $15.

    Are all employees entitled to minimum wage?

    Almost all employees have the right to a minimum wage. If you work for your spouse, parent or child, you do not have the right to minimum wage. Other close relatives (e.g., uncles, aunts and siblings) are fully protected by the law and must be paid at least minimum wage.

    Workers who are learning a new skill and have no similar or related experience, called “learners,” may be paid a reduced rate of 85 percent of the minimum wage, rounded to the nearest nickel, but only for the first 160 hours of work. For example, a factory worker who has never worked with a certain type of machine can be paid the reduced rate while learning how to operate that particular machine.

    Is minimum wage the same everywhere in California?

    No, many cities and some counties in California have higher minimum wages. (Cities and counties are not allowed to mandate pay that is less than California minimum wage.) For example, Los Angeles, unincorporated areas in Los Angeles County, Oakland, Pasadena, San Diego, San Francisco, San Jose, and Santa Clara all have minimum wages above the state minimum.

    You can use The Economic Policy Institute’s Minimum Wage Tracker to see if the county/city you work in has a higher minimum wage.

    If I live in one city, and work in a different city, which minimum wage applies?

    The minimum wage in the city where you work is the relevant minimum wage. For example, if you live in Daly City, but your work in San Francisco, you are entitled to San Francisco Minimum Wage.

    Because of COVID, many people are working remotely from home. If you are working from home, the minimum wage of the city you live in applies.

    What if my job requires travel, and I perform work in more than one city?

    A local minimum wage applies to work performed in that city if the employee works two or more hours of work within that city during a given week.

    If your job requires you to travel to another city with its own minimum wage ordinance, and work for at least two hours in that city, you are entitled to that city’s minimum wage for the work you performed there.

    What if I agreed to be paid less than Minimum wage?

    Even if you agreed to get paid less than the minimum wage, you are still entitled to get paid the minimum wage. You have the right to be paid minimum wage for every hour you work, even if you previously told your employer that you would work for less. In other words, you cannot give up (“waive”) your right to minimum wage no matter what you say or do. If you agreed to perform work for less, you still can file a claim to recover up to minimum wage.

    What if I agreed to be a volunteer?

    A true volunteer is not an employee and does not have the right to minimum wage. However, some employers try to avoid paying workers by calling them “volunteers” even when they are not.

    If you work for a for-profit company, you are not a volunteer. Only non-profit employers (such as churches and community-based organizations) can have unpaid volunteers. Even if you work for a non-profit, you will only be considered a volunteer if you do not work in a section of the non-profit that is a commercial enterprise competing with other businesses.

    For example, if you sell clothes in a church thrift store, you are an employee. Also, it must be very clear that you are willing to work for the non-profit without pay. If there is evidence that you expected some payment (even if it is in the form of food or shelter) or your non-profit employer coerced you into calling yourself a “volunteer,” you may well actually be an employee who has the right to minimum wage.

    Does it matter if I am paid by the day, the week, or the piece, instead of with an hourly rate?

    Certain higher-paid salaried workers are exempt from the minimum wage, but most workers are entitled to a minimum wage for all hours worked. Even if you are paid by piece rate, commission, or a daily rate, you must receive at least the minimum wage for every hour you work and every hour you are under the control of your employer.

    If, for example, you get paid $1.00 per piece and only make 5 pieces in an hour, your employer cannot pay you only $5.00 for that hour but must make up the difference up to the current minimum wage.

    Certain higher-paid salaried workers are exempt from the minimum wage. To be exempt from the minimum wage, you have to earn the equivalent of twice the state minimum wage for full-time employment. For example, if you are working at an employer with 26 or more employees, in 2021 you would have to earn at least $58,240 (which is twice the minimum hourly wage of $14, for 40 hours a week over 52 weeks). You also have to primarily have certain executive, professional, or administrative job duties.

    If I’m receiving tips, can my employer pay me less than minimum wage?

    No. Your employer is required to pay you minimum wage, and they cannot use your tips to offset their obligation.

    What if my employer pays me in food or housing?

    In very limited cases, an employer can substitute housing or food for some (not all) of your minimum wage. In order to “credit” housing or food against minimum wage, an employer must have a voluntary written agreement with each employee who receives this substitution.  Even in those cases where the employer has a written agreement, there are limits on the amounts that can be deducted for lodging or food. More information about maximum deductions is available at the Department of Industrial Relations’ website.

    My employer never told me my hourly rate; how do I figure it out?

    It depends on how you are paid:

    • If you know your annual income, divide that number by 52 weeks, then divide the answer by how many hours you work in a week.
      • Jay makes $18,000 a year (before taxes), and on average he works 25 hours a week.
        • $18,000/ 52 weeks =$346.15 a week
        • $346.15/25 hours = $13.85

    Jay makes approximately $13.85 an hour

    • If you were promised a monthly wage, multiply that number by 12 months, then divide your answer by 52 weeks. Lastly either (a) divide the answer by how many hours you work in a week, or (b) divide the answer by 40, if you worked over 40 hours a week.
      • Nora was promised $1,200 a month (before taxes), and on average works 30 hours a week.
        • $1,200 x 12 months = $14,400 a year
        • $14,400/52 weeks = $276.92 a week
        • $276.92/30 hours = $ 9.23

    Nora makes approximately $9.23 an hour.

    If you do not know exactly how many hours you worked, make your best estimate. Your employer has an obligation to maintain detailed records about your employment, you can amend your claim after receiving records from your employer. Legal Aid at Work offers a free template you can use to send your employer a records request letter.

    Legal Aid at Work may be able to help calculate your wages owed through our wage claim clinics.

    I was making minimum wage (or more than minimum wage), and then my employer stopped paying me for work I already performed. Does that mean my employer violated minimum wage law?

    Yes. Your employer is required to pay you at least the minimum wage for every hour worked. If you have not received payment for all hours worked, your employer has violated minimum wage law (even if you usually make more than minimum wage).

    What do I do if my employer isn’t paying me minimum wage?

    If you have been paid less than minimum wage during any pay period for any job, you can call our Workers’ Rights Clinics to receive free advice about your claim.

    One option workers can use to recover the wages your employer should have paid is to file a wage claim with the California Division of Labor Standards Enforcement (also known as the “Labor Commissioner”) to recover the wages you should have been paid.

    You can also go to court to collect your wages. The Labor Commissioner’s process is normally easier for workers who cannot afford lawyers, and there is no maximum amount you can claim.  (If you go to Small Claims Court, the maximum is $10,000. If your claim is for more than $10,000, you can file a claim in Superior Court).

    To have the best chance of recovering the money you are owed try and keep your own written record of the hours you work and keep any paperwork (e.g. check stubs and timecards) that your employer gives you.

    Will my employer be penalized for not paying me minimum wage?

    In addition to the wages you are owed, you can ask for liquidated damages:

    Under California law, when an employee has been paid less than the minimum wage, the employee can collect two types of damages.  First, the employee can collect the difference between the amount the employer paid him and the agreed upon rate as actual damages.  (If the agreed upon rate was below the minimum wage, the employee can collect the difference between the amount the employer paid him and the minimum wage as actual damages.)  Second, the employee can collect the difference between the amount the employer paid him and the minimum wage as “liquidated damages.”

    For example, if an employer agreed to pay a worker $20 an hour, but paid the worker $10 an hour, and a minimum wage rate of $15 an hour applied, the employee could collect $10 an hour (the difference between the agreed upon rate and the amount actually paid) as actual damages. The worker can collect an additional $5 an hour (the difference between the minimum wage and the amount actually paid) as separate “liquidated damages.”

    If you no longer work for the employer who underpaid you, you can also ask for “waiting time penalties”:

    California law allows the Labor Commissioner to penalize an employer who hasn’t paid an employee in full when he quits or is discharged.  These penalties, which go to the employee, can amount to up to 30 days of the daily wage you were entitled to under the law.

    For example: Anna normally makes $16 an hour and works 5 hours a day. Anna was terminated on May 1, 2020, and as of August 1, 2020 she has not received the wages she is owed for her last two weeks of employment.

    • $16 x 5 hours = $80 a day
    • $80 x 30 days = $2,400 in waiting time penalties

    Anna is owed $2,400 on top of the wages she was not paid. In this scenario, Anna has been waiting for longer than 30 days to receive her last paycheck, however waiting time penalties cap at 30 days.

    How long do I have to file a wage claim?

    Normally, you can file a wage claim for any unpaid wages from the three years before the date you filed the claim. Through the Labor Commissioner, you can collect unpaid wages for work you performed up to three years before you file a claim.  If you go to court instead of the Labor Commissioner, you may be able to go back four years by claiming that your employer violated California’s unfair competition laws by not paying you the minimum wage.

    Because of COVID-19, if you are owed wages after April 5, 2017, you may in some situations be able to file a wage claim to recover those wages even if the wages have been owed for more than three years.