Study guide · Law & Business · Employment Requirements
Wages and Hours: What the Crew Is Owed
About 24 minutes · 6 sections
What this guide covers
Most of what governs your crew's hours is not in the Labor Code — it is in a wage order written for your industry. Wage Order 16 covers on-site construction, including any work that needs a contractor's license, and it supersedes every other industry wage order for those employees. It carries rules the Labor Code never mentions: travel between job sites is paid time, a crew sent home early is owed reporting time pay, and nobody can be disciplined for refusing to work more than 72 hours in a week. Read only the statutes and you will teach yourself the general rule while the specific one governs your jobsite.
Key terms
- Wage order
- A regulation issued by the Industrial Welfare Commission setting wages, hours and working conditions for a particular industry. Wage Order 16 is the construction one.
- Regular rate of pay
- The hourly figure overtime multiplies. It is not simply the base wage — it takes in other compensation such as nondiscretionary bonuses, so it can be higher than what the contract says per hour.
- Alternative workweek schedule
- A regularly scheduled workweek — commonly four ten-hour days — that a work unit adopts by secret ballot so those longer days do not trigger daily overtime.
- Hours worked
- Time the employee is subject to the employer's control, plus all time the employee is suffered or permitted to work, whether or not required to do so.
The rules the exam tests
17 rules · 7 minWage Order 16 for construction
Wage Order 16 covers every on-site construction worker. How you pay them changes nothing.
All persons employed in on-site occupations in construction, drilling, logging and mining fall under Wage Order 16, including work that requires a contractor's license under Business and Professions Code sections 7025 and following. It applies whether the employee is paid hourly, by piece rate or by commission.
On the job
This is the order that governs your jobsite, and the scope line says so in terms of the license you hold. How you pay someone does not move them out of it.
Exact wording
Wage Order 16 applies to all persons employed in on-site occupations in construction, drilling, logging and mining, including any work for which a contractor's license is required under Business and Professions Code sections 7025 and following, whether the employee is paid hourly, by piece rate or by commission.
Wage Order 16 supersedes every other wage order for the occupations it covers.
Once an employee's occupation falls under Wage Order 16, no other industry or occupational wage order applies to that employee.
On the job
You do not have to reconcile competing orders for a framer or an operator. One order governs, and it is this one.
Exact wording
For employees in occupations covered by Wage Order 16, that order supersedes any other industry or occupational wage order.
You owe time and one-half for the first 8 hours of the seventh consecutive day.
Wage Order 16 counts the consecutive days within one workweek. The same premium covers hours over 8 and up to and including 12 in a workday, and hours over 40 in a workweek, all at the regular rate of pay.
On the job
Three separate triggers, and a single shift can hit more than one. The seventh-consecutive-day trigger is the one crews on a push forget, because it does not depend on the day being long.
Exact wording
Under Wage Order 16, time and one-half the regular rate is owed for hours worked over 8 and up to and including 12 in a workday, for hours over 40 in a workweek, and for the first 8 hours worked on the seventh consecutive day of work in a workweek.
If you let a crew member work unauthorized hours, you pay them as hours worked.
Under Wage Order 16, hours worked means the time an employee is subject to the employer's control. It also includes all the time the employee is suffered or permitted to work, whether or not the employee was required to do it.
On the job
Unauthorised work the employer knows about and allows is still hours worked — paid, and counted toward the 8- and 40-hour overtime triggers.
Exact wording
Under Wage Order 16, 'hours worked' means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.
Pay double after 12 hours in a workday and after 8 on the seventh straight day.
The doubling applies to the regular rate of pay, not the base wage, so nondiscretionary bonuses raise it. Under Wage Order 16, pay double for hours worked past 12 in a workday, and past 8 on the seventh consecutive day of work in a workweek.
On the job
Twelve hours is where the rate doubles, and on a seventh consecutive day it doubles after only eight. A long Sunday at the end of a six-day week is the most expensive shift on the schedule.
Exact wording
Under Wage Order 16, double the regular rate is owed for hours worked beyond 12 in a workday and for hours beyond 8 on the seventh consecutive day of work in a workweek.
You pay for employer-mandated travel once the crew reaches the first required location.
Under Wage Order 16, the first location is wherever you require the employee to report, such as the yard. You pay for all employer-mandated travel after that point at the regular rate of pay, or the premium rate where applicable.
On the job
Once a worker reports where you told them to report, moving them is on your clock. A crew that meets at the yard and then drives to the site is being paid from the yard onward.
Exact wording
Under Wage Order 16, all employer-mandated travel occurring after the first location where the employer requires the employee's presence must be paid at the regular rate of pay or, where applicable, the premium rate.
If you send a worker home with no work, you owe at least two hours' pay.
Wage Order 16 covers a worker who reports for work as required but is not put to work, or who works less than half the usual or scheduled day. The employer pays half that day's work — at least 2 hours, no more than 4 — at the regular rate, never below minimum wage.
On the job
Sending a crew home costs at least two hours and at most four. Knowing that changes whether you call people off the night before rather than at the gate.
Exact wording
Under Wage Order 16, an employee who reports for work as required but is not put to work or works less than half the usual or scheduled day's work must be paid for half the usual or scheduled day's work, but in no event for less than two hours nor more than four hours, at the employee's regular rate of pay, which may not be less than the minimum wage.
You owe no when a cause outside your control stops the work.
Wage Order 16 sets out three situations. Operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend it. Public utilities fail to supply electricity, water or gas, or the public utilities or sewer system fail. An Act of God or other cause not within your control interrupts the work.
On the job
This is where weather usually lands: an interruption outside your control. It does not cover a schedule you got wrong, a delivery that did not arrive, or an inspection you failed to book.
Exact wording
Under Wage Order 16, reporting time pay is not required when operations cannot begin or continue due to threats to employees or property or when recommended by civil authorities; when public utilities fail to supply electricity, water or gas, or there is a failure in the public utilities or sewer system; or when the interruption of work is caused by an Act of God or other cause not within the employer's control.
You may not fire or discipline an employee for refusing more than 72 hours weekly.
An emergency as defined in Wage Order 16 is the only exception. Outside an emergency, no employee may be terminated, disciplined or otherwise discriminated against for refusing to work more than 72 hours in any workweek.
On the job
There is a ceiling on what you can require, not just a price for exceeding it. Seventy-two hours in a week is the line, and pushing past it against a refusal is a separate wrong from the overtime owed.
Exact wording
Under Wage Order 16, no employee may be terminated, disciplined or otherwise discriminated against for refusing to work more than 72 hours in any workweek, except in an emergency as defined in the order.
You can schedule 10-hour days with no overtime under a properly adopted alternative workweek.
Under Wage Order 16 the schedule must be properly adopted, and its workdays may run up to 10 hours inside a 40-hour workweek. Pay time and one-half for hours worked past the agreement's regularly scheduled hours, and past 40 hours in a workweek.
On the job
This is what four tens buys you: no daily overtime up to ten hours. It does not buy relief past the schedule itself or past forty in the week.
Exact wording
Under Wage Order 16, a properly adopted alternative workweek schedule may provide for workdays of up to 10 hours within a 40-hour workweek without the payment of overtime, and time and one-half is owed for hours worked beyond the regularly scheduled hours set by the agreement and beyond 40 hours in a workweek.
Affected employees must adopt the alternative workweek schedule by secret ballot before the work starts.
Under Wage Order 16, the employer must put the proposal in writing, and the secret ballot election must carry by at least two-thirds of the affected employees in the . Both steps come before the work is performed.
On the job
A written proposal, a secret ballot, two-thirds, and all of it before the work starts. An alternative schedule adopted after the fact, or by agreement rather than by ballot, is not one.
Exact wording
Under Wage Order 16, an alternative workweek schedule must be proposed in writing by the employer and adopted in a secret ballot election, before the performance of work, by at least a two-thirds vote of the affected employees in the work unit.
Winning the alternative workweek vote is not the last step. You still owe a report.
Under Wage Order 16, alternative workweek election results are a public document. You, the employer, must report them to the Division of Labor Statistics and Research within 30 days after the results are final. Post that report at the job site.
On the job
Winning the vote is not the last step. Thirty days to report, and it goes on the wall where the crew can see it.
Exact wording
Under Wage Order 16, the results of an alternative workweek election are a public document and must be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final, and the report must be posted at the job site.
You may not cut regular hourly pay when an alternative workweek is adopted, repealed, or nullified.
The protection covers all three moves: adoption of an alternative workweek schedule, its repeal, and nullification of the schedule. Under Wage Order 16, you may not reduce an employee's regular hourly rate of pay because of any of them.
On the job
The schedule changes the hours, not the rate. Cutting the hourly rate to offset what the new schedule costs is exactly what this forbids.
Exact wording
Under Wage Order 16, an employer may not reduce an employee's regular hourly rate of pay as a result of the adoption, repeal or nullification of an alternative workweek schedule.
Keep an alternative workweek schedule of more than eight hours a day off public works contracts.
Check the contract type. Under Wage Order 16, an alternative workweek schedule requiring more than eight hours of work in a day may never be used on a public works contract in violation of Labor Code sections 1810 to 1815.
On the job
An alternative schedule that is valid on your private work does not travel onto a public job. Check the contract type before applying the schedule.
Exact wording
Under Wage Order 16, an alternative workweek schedule requiring more than eight hours of work in a day may never be used on a public works contract in violation of Labor Code sections 1810 to 1815.
Keep the records Wage Order 16 requires within California. Out-of-state storage does not count.
The records Wage Order 16 requires must be in English and written in ink or another indelible form. Date each record with month, day and year. Store them at the place of employment or at a central location within California.
On the job
Same shape as the paystub retention rule: legible, dated, and physically reachable in California. A cloud folder administered from out of state is not obviously any of those.
Exact wording
Under Wage Order 16, records required by the order must be in English, in ink or other indelible form, properly dated showing month, day and year, and kept at the place of employment or at a central location within the State of California.
Post Wage Order 16 in an area your employees frequent.
Your copy of Wage Order 16 must stay posted at all times and be easy to read during the workday. Where the nature of the work or working conditions makes posting impractical, keep a copy and make it available to every employee on request.
On the job
Posting is a duty in its own right and it is checked on inspection. On a site with no trailer, the fallback is keeping it available on request rather than not having it.
Exact wording
Under Wage Order 16, every employer must keep a copy of the order posted at all times in an area frequented by employees where it may be easily read during the workday, and where the nature of the work or the working conditions makes posting impractical the employer must keep a copy of the order and make it available to every employee on request.
Take away
10 rules · 4 minOvertime and alternative workweeks
Treat eight hours as a day's work. Pay the ninth hour at time and a half.
Pay at least 1.5 times the regular rate of pay for hours over eight in a workday, hours over 40 in a workweek, and the first eight hours on the seventh day worked in that workweek.
On the job
The Labor Code sets the same baseline the wage order carries, which matters because the statute reaches employees the order does not.
Exact wording
Eight hours of labor constitutes a day's work, and any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek must be compensated at no less than one and one-half times the regular rate of pay.
Daily and weekly overtime does not apply under a formally adopted alternative workweek schedule.
An alternative workweek schedule qualifies three ways: adopted under Labor Code 511, adopted in a collective bargaining agreement under Labor Code 514, or placed outside the chapter by Labor Code 554. On any of the three, Labor Code 510's daily and weekly overtime requirements do not apply to the employee.
On the job
Overtime has exactly three routes around it and all three are formal arrangements. There is no informal version — a handshake about ten-hour days is not one of these.
Exact wording
The daily and weekly overtime requirements of Labor Code section 510 do not apply to an employee working under an alternative workweek schedule adopted under section 511, an alternative workweek schedule adopted under a collective bargaining agreement under section 514, or an alternative workweek schedule to which the chapter is inapplicable under section 554.
Divide a full-time salaried worker's weekly salary by 40 for the regular rate.
The regular rate of pay is the hourly figure overtime multiplies. For a nonexempt full-time salaried employee it is one-fortieth of the weekly salary. A salary does not remove the overtime duty; it only changes the arithmetic.
On the job
Paying a salary does not remove overtime; it just changes the arithmetic. Divide the weekly salary by 40 and multiply from there.
Exact wording
For a nonexempt full-time salaried employee, the regular hourly rate used to compute overtime is one-fortieth of the employee's weekly salary.
When you pay a nonexempt worker a fixed salary, you still owe overtime on top.
A private agreement that the fixed salary covers whatever hours the job takes does not change the rule: the salary counts as payment for the nonexempt employee's regular, nonovertime hours only.
On the job
An agreement that the salary 'covers whatever hours it takes' is void as to overtime. The salary buys the first 40 hours and nothing more.
Exact wording
Payment of a fixed salary to a nonexempt employee is deemed to be payment only for the employee's regular, nonovertime hours, notwithstanding any private agreement to the contrary.
A salary alone never makes an employee exempt. The duties and discretion must qualify too.
Executive, administrative and professional employees are exempt only when all three are true: the employee is primarily engaged in duties meeting the exemption's test; customarily and regularly exercises discretion and independent judgment; and earns a monthly salary of no less than two times the state minimum wage for full-time employment.
On the job
Three conditions, all required. A salary alone never creates an exemption, and neither does a job title — the duties and the discretion have to be there too.
Exact wording
An employee is exempt as an executive, administrative or professional employee only if the employee is primarily engaged in duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.
Full-time employment means 40 hours a week under the white-collar exemption.
The minimum monthly salary for an exempt executive, administrative, or professional employee is calculated on a 40-hour week. An employer that treats fewer hours as full time cannot lower that salary minimum.
On the job
The threshold is computed on a 40-hour week whatever your company calls full time, so a shop that treats 32 hours as full time cannot lower the bar that way.
Exact wording
For the salary basis of the white-collar exemption, 'full-time employment' means employment for 40 hours per week.
Primarily engaged in means more than half of worktime spent on exempt work.
The white-collar exemption covers executive, administrative and professional employees. "Primarily engaged in" means the employee spends more than one-half of the employee's worktime on exempt work. A working foreman with tools in hand fails that test.
On the job
More than half of actual time, measured. This is stricter than the federal approach, which asks what the employee's most important duty is — a working foreman who spends most of the day with tools in hand is not primarily engaged in exempt work.
Exact wording
For the white-collar exemption, 'primarily engaged in' means that the employee spends more than one-half of the employee's worktime engaged in exempt work.
You must provide a meal period once a workday passes five hours.
The meal period must be at least 30 minutes. You and the employee may waive it by mutual consent only when that day's total work period is no more than six hours.
On the job
The trigger is five hours and the waiver window is six. Those are two different numbers doing two different jobs, and swapping them is the usual mistake.
Exact wording
An employer may not employ an employee for a work period of more than five hours per day without providing a meal period of not less than 30 minutes, except that if the total work period per day is no more than six hours the meal period may be waived by mutual consent of both the employer and the employee.
You must provide a second meal period past 10 hours. You cannot waive both.
More than 10 hours in a day requires you to provide a second meal period of at least 30 minutes. Waiver takes mutual consent, no more than 12 total hours worked, and a first meal period that was not waived.
On the job
The second waiver has a condition the first does not: you cannot waive both. A crew that skipped lunch cannot then waive the second meal on a twelve-hour day.
Exact wording
An employer may not employ an employee for a work period of more than 10 hours per day without providing a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours the second meal period may be waived by mutual consent of the employer and the employee, and only if the first meal period was not waived.
A readily identifiable adopts an alternative workweek by secret-ballot vote.
The employer proposes it, as one schedule or a menu of options, and at least two-thirds of the affected employees must approve. Regularly scheduled days up to 10 hours within a 40-hour week then carry no daily overtime. Under the adopted schedule, hours past eight but not over 12 in a day pay one and one-half times the regular rate.
On the job
Two-thirds by secret ballot and the 10-hour day are the tested figures; overtime still applies past the adopted schedule.
Exact wording
On an employer's proposal, the employees of a readily identifiable work unit may adopt a regularly scheduled alternative workweek allowing up to 10 hours a day within a 40-hour week without daily overtime, but only if it is approved in a secret-ballot election by at least two-thirds of the affected employees; the proposal may be a single schedule or a menu of options. Hours beyond eight but not more than 12 in a day under the adopted schedule are paid at one and one-half times the regular rate.
Take away
3 rules · 3 minRest, records, and personnel files
You may not require an employee to work through a mandated break.
A mandated break is a meal, rest or recovery period that a statute or regulation requires. If you fail to provide one, pay one extra hour at the employee's regular rate of compensation for each workday that period is not provided.
On the job
One hour of pay per workday, per category of break missed. It is a premium rather than a fine, and it is owed even where the employee says they would rather work through.
Exact wording
An employer may not require an employee to work during a meal, rest or recovery period mandated by an applicable statute or regulation, and if the employer fails to provide such a period it must pay the employee one additional hour of pay at the employee's regular rate of compensation for each workday that the period is not provided.
Keep your payroll records on file for at least three years.
Keep the names and addresses of all employees and the ages of all minors. Payroll records must show the hours worked daily by and the wages paid to each employee, with piece-rate units and rates where applicable. Keep them at a central location in the state or at the establishments where employees work, on file for at least three years. You may not prohibit an employee from keeping a personal record of hours worked.
On the job
Three years is the tested figure for payroll records, and the employee's own log is protected.
Exact wording
Every employer must keep a record of the names and addresses of all employees and the ages of all minors, and must keep, at a central location in the state or at the establishments where employees work, payroll records showing the hours worked daily by and the wages paid to each employee, with piece-rate units and rates where applicable, on file for not less than three years; an employer may not prohibit an employee from keeping a personal record of hours worked.
You have 30 calendar days from a written request to show or copy personnel records.
A current or former employee, or a the employee authorized in writing, may inspect and copy the personnel records you keep on that employee's performance or on any grievance about the employee. The clock runs from the day you receive the written request; a written agreement can extend inspection to a date no more than 35 calendar days from receipt. Provide a copy within 30 calendar days of the written request, charging no more than your actual cost of reproduction. The request can be a plain writing or your own form; if you use a form, you must hand it over when the employee asks the supervisor or your designated recipient out loud. For a current employee, allow inspection and give the copy where the employee reports to work, or at another location you and the requester agree on; if you require another location, the employee loses no compensation. Apart from that location rule, you need not open the records while the employee is actually required to render service when the employee is the requester, but the 30-day clock keeps running. You owe a former employee only one request per year, and no more than 50 representative-filed requests in one calendar month. A former employee's records stay at the place you store them unless both sides agree in writing on another location, and you mail a copy if the former employee reimburses your actual postal expenses. If you terminated that former employee for a violation of law or of an employment-related policy on harassment or workplace violence, you may instead use a non-workplace location within a reasonable driving distance of that person's residence, or mail the copy. If a current or former employee sues you over a personnel matter the records are relevant to, the right to inspect or copy stops while the suit is pending in the court of original jurisdiction.
On the job
Thirty calendar days from the written request, for inspection and for copies; the 21-day clock is the separate payroll-record rule.
Exact wording
Every current and former employee, or their representative, may inspect and receive a copy of the personnel records the employer keeps relating to the employee's performance or any grievance concerning the employee. The employer must make them available for inspection within 30 calendar days of receiving a written request, extendable by written agreement to a date not more than 35 calendar days from receipt of the request, and must provide a copy within 30 calendar days of a written request at no more than the actual cost of reproduction. For a current employee the records are made available, and a copy provided, at the place where the employee reports to work or at another location agreeable to the employer and the requester; if the employee is required to inspect or receive the copy at another location, no loss of compensation to the employee is permitted. Except as to that location rule, the employer need not make the records available at a time when the employee is actually required to render service, if the requester is the employee — the 30-day clock still runs; an employer must comply with only one request per year from a former employee, and with no more than 50 representative-filed requests in one calendar month. A request is made in writing by the employee or representative, either as a plain writing or on an employer-provided form; if the employer uses a form it must make the form available on a verbal request to the employee's supervisor or the employer's designated recipient. A former employee's records are made available at the location where the employer stores them unless the parties agree in writing to another location, and a former employee may receive a copy by mail on reimbursing the employer's actual postal expenses; where the former employee was terminated for a violation of law or of an employment-related policy involving harassment or workplace violence, the employer may instead make the records available at a non-workplace location within a reasonable driving distance of the former employee's residence, or mail a copy. A 'representative' is a person authorized in writing by the employee to inspect or receive a copy of the records. If an employee or former employee files a lawsuit against the employer that relates to a personnel matter — meaning the personnel records are relevant to the lawsuit — the right to inspect or copy them under this section ceases while the lawsuit is pending in the court of original jurisdiction.
Take away
3 rules · 4 minHiring and harassment training
If you regularly employ five or more people, the Fair Employment and Housing Act covers you.
The Fair Employment and Housing Act is the state law behind the harassment training and fair-chance rules in this chapter. An employer under it is any person regularly employing five or more persons, an employer's agent, or the state and its subdivisions — but not a nonprofit religious association or corporation. The act's definitions section also fixes the meanings of age (40 and over), employee, essential functions, and supervisor. Except as Section 12926.05 provides, employee excludes an individual employed by that individual's parent, spouse, or child, and an individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.
On the job
Five or more employees is the threshold that brings a contractor under the harassment-training and fair-chance rules.
Exact wording
For the Fair Employment and Housing Act, an employer includes any person regularly employing five or more persons, or acting as an employer's agent, and the state and its subdivisions, but not a nonprofit religious association or corporation; the definitions section also fixes the meanings the act uses for terms such as age (40 and over), employee, essential functions, and supervisor. Except as section 12926.05 provides, 'employee' does not include an individual employed by that person's parent, spouse, or child, or an individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.
Give supervisors two hours of harassment training and everyone else one. Repeat every two years.
For this section, an employer is any person regularly employing five or more persons or regularly receiving the services of five or more persons providing services under a contract, an agent of such an employer, or a public entity. If that covers you, give every supervisory employee in California at least two hours and every nonsupervisory employee at least one hour of classroom or other effective interactive sexual-harassment training, then repeat it for each employee once every two years. Train new nonsupervisory employees within six months of hire and new supervisory employees within six months of assuming a supervisory position. You may give the training with other training, individually or in a group, and in shorter segments, so long as the hourly total is met. For seasonal, temporary, or other employees hired to work less than six months, train within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first. For a temporary services employer's temporary employee, the temporary services employer provides the training, not the client. If you employ workers under a multiemployer collective bargaining agreement in the construction industry, you may instead show the employee received the required training within the past two years while employed by another signatory employer in the same trade, while an apprentice in a Division of Apprenticeship Standards-approved building and construction trades program, or through such a program, a labor management training trust, or a labor management cooperation committee established under 29 U.S.C. 175a.
On the job
Two hours for supervisors, one for everyone else, every two years, six months for new hires and new supervisors, and 30 days or 100 hours for short-term hires: the exam tests the numbers, and for this section a contractor's headcount includes contracted labor.
Exact wording
An employer — for this section, any person regularly employing five or more persons or regularly receiving the services of five or more persons providing services under a contract, an agent of such an employer, or a public entity — must provide at least two hours of classroom or other effective interactive sexual-harassment training to all supervisory employees and at least one hour to all nonsupervisory employees in California, then repeat it for each employee once every two years; new nonsupervisory employees are trained within six months of hire and new supervisory employees within six months of assuming a supervisory position. The training may be given with other training, individually or in a group, and in shorter segments so long as the hourly total is met. For seasonal, temporary, or other employees hired to work for less than six months, training must be provided within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first; for a temporary employee of a temporary services employer, the temporary services employer rather than the client provides it. An employer that employs workers under a multiemployer collective bargaining agreement in the construction industry may instead satisfy the training duty by demonstrating that the employee received the required training within the past two years while employed by another signatory employer in the same trade, while an apprentice in a Division of Apprenticeship Standards-approved building and construction trades program, or through such a program, a labor management training trust, or a labor management cooperation committee established under 29 U.S.C. 175a.
You ask about convictions only after a conditional offer. Arrests without conviction stay off limits.
A conditional offer of employment is a job offer you have already made, subject to conditions still to be met, and this section covers any employer with five or more employees. Before you make that offer, your application may carry no question seeking conviction history, and you may not inquire into or consider conviction history at all. Even after the offer, you may not consider, distribute, or disseminate arrests not followed by conviction, except in the limited circumstances Labor Code 432.7(a)(1) and 432.7(f) permit, such as a health facility asking applicants for certain positions about specified arrests. The same bar covers referral to or participation in a diversion program, and convictions that have been sealed, dismissed, expunged, eradicated, or pardoned. An arrest for which the applicant is out on bail or on their own recognizance pending trial counts as conviction history, so it may be inquired into or considered only after a conditional offer; a health facility's 432.7(f) arrest not resulting in conviction counts the same way. The section does not apply to a position for which a state or local agency is otherwise required by law to run a conviction history background check, to a position with a criminal justice agency or as a Farm Labor Contractor, or where state, federal, or local law requires you to run criminal background checks or to restrict employment based on criminal history. These remedies add to the applicant's rights and remedies under any other law, including a stricter local fair-chance ordinance, and do not displace them.
On the job
The conditional offer is the line: no conviction question before it, and even after it the listed records are off limits.
Exact wording
An employer with five or more employees may not include on an employment application any question seeking an applicant's conviction history before making a conditional offer of employment, may not inquire into or consider conviction history until after a conditional offer, and may not consider, distribute, or disseminate arrests not followed by conviction — except in the limited circumstances Labor Code 432.7(a)(1) and 432.7(f) permit, such as a health facility asking applicants for certain positions about specified arrests —, referral to or participation in a diversion program, or convictions that have been sealed, dismissed, expunged, or eradicated, or pardoned. The section does not apply to a position for which a state or local agency is otherwise required by law to conduct a conviction history background check, to a position with a criminal justice agency or as a Farm Labor Contractor, or where the employer is required by state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. An arrest for which the applicant is out on bail or on their own recognizance pending trial counts as conviction history — reachable only after the conditional offer — rather than as a barred arrest record, as does, for a health facility, an arrest not resulting in conviction in the limited 432.7(f) circumstances. The remedies under the section are in addition to, and do not displace, other rights and remedies an applicant has under any other law, including a stricter local fair-chance ordinance.
Take away
Important numbers to know
Where people go wrong
Sounds right: The Labor Code is where the hours rules live, so the wage order is background reading.
Where’s the catch?
Sounds right: A salaried employee is never owed overtime.
Where’s the catch?
Sounds right: Double time starts after twelve hours, full stop.
Where’s the catch?
Sounds right: The crew would rather skip lunch and finish early, so we let them.
Where’s the catch?
Sounds right: We adopted four tens by agreement with the crew, so daily overtime does not apply.
Where’s the catch?
Glossary
Every term this guide defines, in one place. Each is also defined where it first appears.
- Nonexempt
- An employee entitled to overtime, meal periods and rest periods. The default. Exempt status is the exception and has to be earned against a test.
- Reporting time pay
- Partial pay owed when an employee shows up as required but is sent home without work, or works less than half the scheduled day.
- Representative (personnel records)
- A person the employee has authorized in writing to inspect or receive a copy of their personnel records; a union agent, relative, or lawyer without a written authorization is not one.
- Work unit
- For an alternative workweek vote, a readily identifiable unit of employees: under Labor Code 511 it includes a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any of these, and it may be a single employee if the identifiable-unit criteria are met; Wage Order 16 frames the unit as the nonexempt employees of one employer within a craft who share a common work site.
Keep going
- Practice questions for Law & Business — Employment Requirements is 20% of the exam.
- Job scenario: The Pay Stub
- Job scenario: Three Clocks on One Friday
- Also in Employment Requirements: Paydays, Paystubs and the Final Check
- Also in Employment Requirements: Paid Sick Leave: What the Crew Accrues
- Every number on one page — this guide’s figures alongside every other Law & Business guide’s.
Test yourself: 7 questions for this guide
A paid account adds more ways to practice and prepare: study questions after every chapter, practice questions for every topic, timed practice exams, and job scenarios drawn from real jobs. A free account gets you one timed practice exam and saves your progress across devices. Here is one of this guide's questions:
Your crew works Monday through Saturday, then you ask them in on Sunday to beat a concrete pour. A labourer works 10 hours Sunday. What rate applies to those 10 hours?
AnswerTime and a half for the first 8, then double time for hours 9 and 10. Sunday is the seventh consecutive day of the workweek, which triggers time and a half for the first eight hours regardless of how long the day is, and double time beyond eight — not beyond twelve, which is the ordinary-day threshold.
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When you miss a question on this topic, we'll suggest a job scenario where there is one, rather than text you've already read. Finishing every chapter counts too.