California state law requires almost all employees in California to be paid no less than minimum wage as set by state or local law (local law applies if the city or county has adopted a higher minimum wage than the state minimum wage) for all hours worked. See California Labor Code sections 1182.12, 1194, 1197, 1197.1. The minimum wage rate established in California, which as of January 1, 2021 is $14 an hour for employers with 26 or more employees and $13 an hour for employers with less than 26 employees, generally applies to every worker in the state. However, there are limited exemptions regarding an employer's obligation to pay workers no less than minimum wage. These exemptions provide that a worker belonging to one of the designated categories may be paid less than the state minimum wage. If an exemption applies, an employee can legally be paid at a rate below the otherwise applicable minimum wage. Unless an exemption applies, an employee must be paid at a rate no less than the applicable state or local minimum wage. The employer has the burden of proving that an exemption applies.
Parent, Spouse, and Children ExemptionAn employer's parent, spouse, child, or legally adopted child may be paid less than the California minimum wage. Industrial Welfare Commission Wage Orders Nos. MW-2021, 1, et al. This exemption does not apply to employers that are corporations or limited liability companies, as such entities, unlike employers who are sole proprietorships or partnerships, are deemed not to have parents, spouses, children, or legally adopted children.
Learners ExemptionLearners are employees, regardless of age, hired for an occupation in which they have no previous similar or related experience. Such employees during their first 160 hours of employment may be paid not less than 85 per cent of the California minimum wage in effect at the time rounded to the nearest nickel. California Code of Regulations, title 8, sections 11010-11150. See also California Labor Code section 1192.
Apprentice ExemptionAnother exemption applies to "apprentices." Apprentices, however, must be regularly indentured according to the State Division of Apprenticeship Standards for this exemption to apply. California Labor Code sections 1192, 3070, 3071, 3073, and California Code of Regulations, title 8, sections 200-242.6.
Disabled Employee ExemptionThe Industrial Welfare Commission may issue a special license to a nonprofit organization such as a sheltered workshop or rehabilitation facility to permit the employment of employees the commission has determined to be mentally or physically handicapped. California Labor Code section 1191.5.
Student Employee And Camp Counselor Exemption"No student employee, camp counselor, or program counselor of an organized camp shall be subject to a minimum wage or maximum hour order of the commission if [such employee] receives a weekly salary of at least 85 percent of the minimum wage for a 40-hour week, regardless of the number of hours per week [such employee] might work at the organized camp. If [such employee] works less than 40 hours per week, [such employee] shall be paid at least 85 percent of the minimum hourly wage for each hour worked." California Labor Code section 1182.4. "Organized camp" means "a site with program and facilities established for the primary purposes of providing an outdoor group living experience with social, spiritual, educational, or recreational objectives, for five days or more during one or more seasons of the year." California Health and Safety Code section 18897.
Outside Salesperson ExemptionAccording to the California Department of Industrial Relations an outside salesperson is "Any person, 18 years of age or older, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services, or use of facilities." An outside salesperson is an employee who spends half or more of his or her workweek away from the employer's primary business location, usually advertising and negotiating for transactions of a particular product or service with clients and potential customers. An example of this would be the proverbial door-to-door salesperson, selling household products such as vacuum cleaners or refrigerators to people at their front doorstep. An employer is not required to pay California minimum wage to an outside salesperson. California Labor Code section 1171; Industrial Welfare Commission Wage Order No. MW-2021. The employer must establish that the nature of the employee's work meets the legal definition of an outside salesperson for this rule to apply. For example, if the activities of the individual during the fifty percent or more of the time attributed to sales involves anything other than sales, the exemption does not apply. California Labor Commissioner's Office Opinion Letter 1994.07.14. The rationale for this exemption is that "it's very difficult to control their hours and working conditions. They set their own time, and they're on the road, they call on their customers. . . . [R]arely do you know what they're doing on an hour-to-hour basis." California Labor Commissioner's Office Opinion Letter 1998.09.08.
National Service ExemptionIndividuals in a national service program, for instance AmeriCorps, also do not have to be paid California minimum wage rate while working in the state. California Labor Code section 1171. See also 42 United States Code sections 12571, 12572.
It is important to remember, however, that in order for an exemption to apply, the employee being paid less than the state minimum wage must genuinely belong to a category that qualifies for exemption. The employer, for instance, cannot merely give the employee a title, such as "outside salesperson," that fits in one of the categories and thereby avoid its legal obligation to pay the employee at least minimum wage for all hours worked.
MinorsEmployers generally must pay minors no less than the state minimum wage. California Labor Code section 1197. High school graduates or the equivalent must be paid wages commensurate with adult employees in the same establishment when they perform the same quantity, quality, and classification of work. This includes wage rates that are above the minimum wage. California Labor Code section 1391.2.
Contact UsIf you have not been paid at least minimum wage for all hours worked, or if you believe your employer or former employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact Us via our online form.