1. Labor Commissioner's Office

DLSE - Glossary

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A

abuse

"Abuse" means the following:

  1. Intentionally or recklessly to cause or attempt to cause bodily injury.
  2. Sexual assault.
  3. Placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
  4. Engaging in any of the following behavior: molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party. Family Code Section 6203

administrative exemption

A person employed in an administrative capacity means any employee:

  1. Whose duties and responsibilities involve either:
  1. The performance of office or non-manual work directly related to management policies or general business operations of his or her employer or his or her employer's customers, or
  2. The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and
  1. Who customarily and regularly exercised discretion and independent judgment; and
  2. Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity, or
  3. Who performs, under only general supervision, work along specialized or technical lines requiring special training, experience, or knowledge, or
  4. Who executes, under only general supervision, special assignments and tasks, and
  5. Who is primarily engaged in duties which meet the test for the exemption.
  6. An administrative employee must also earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment means 40 hours per week as defined in Labor Code Section 515(c).

Following are examples of employees who might qualify for the exemption if, and only if, they meet the criteria set forth above:

  1. Employees who regularly and directly assist a proprietor or exempt executive or administrator. Included in this category are those executive assistants and administrative assistants to whom executives or high-level administrators have delegated part of their discretionary powers. Generally, such assistants are found in large establishments where the official assisted has duties of such scope and which require so much attention that the work of personal scrutiny, correspondence and interviews must be delegated.
  2. Employees who perform, only under general supervision, work along specialized or technical lines requiring special training, experience or knowledge. Such employees are often described as "staff employees," or functional, rather than department heads. They include employees who act as advisory specialists to management, or to the employer's customers. Typical examples are tax experts, insurance experts, sales research experts, wage rate analysts, foreign exchange consultants, and statisticians. Such experts may or may not be exempt, depending on the extent to which they exercise discretionary powers. Also included in this category would be persons in charge of a functional department, which may even be a one-person department, such as credit managers, purchasing agents, buyers, personnel directors, safety directors, and labor relations directors.
  3. Employees who perform special assignments under only general supervision. Often, such employees perform their work away from the employer's place of business. Typical titles of such persons are buyers, field representatives, and location managers for motion picture companies. This category also includes employees whose special assignments are performed entirely or mostly on the employer's premises, such as customers' brokers in stock exchange firms and so-called "account executives" in advertising firms.

Regarding the requirement for the exemption to apply that the employee "customarily and regularly exercises discretion and independent judgment," this phrase means the comparison and evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The employee must have the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance. With respect to the administrative exemption, this phrase has been most frequently misunderstood and misapplied by employers and employees alike in cases involving the following:

  1. Confusion between the exercise of discretion and independent judgment, and the use of skill in applying techniques, procedures, or specific standards.
  2. Misapplication o the phrase to employees making decisions relating to matters of little consequence.
  3. Perhaps the most common misapplication is the application of the exemption to employees engaged in production aspects of the employer's business as opposed to administrative functions.

Caveat. As with any of the exemptions, job titles reflecting administrative classifications alone may not reflect actual job duties and therefore, are of no assistance in determining exempt or nonexempt status. The fact that an employee may have one of the job titles listed above is, in and of itself, of no consequence. The actual determination of exempt or nonexempt status must be based on the nature of the actual work performed by the individual employee.


adverse action

An act or action taken by an employer against an employee that works to the employee's detriment in some aspect of his or her employment, including a poor evaluation, surveillance, an unfavorable recommendation for a promotion, less desirable duties, a transfer, demotion, a cut in pay, or a discharge.


affinity

Used in the context of "victim of domestic violence" signifies the connection existing in consequence of marriage between each of the married persons and the blood relatives of the other. Family Code Section 6205


alternative workweek schedule

Any regularly scheduled workweek requiring an employee to work more than eight hours in a 24-hour period.


B

bonus

Money promised to an employee in addition to the monthly salary, hourly wage, commission or piece rate usually due as compensation. Bonuses are in addition to any other remuneration rate and may be predicated on performance over and above that which is paid for hours worked, pieces made, or sales completed. A bonus may be in the form of a gratuity where there is no promise for their payment, for example, a holiday bonus at the end of the year. Additionally, a bonus may be a contractually required payment where a promise is made that a bonus will be paid in return for a specific result, such as exceeding a minimum sales figure or piece quota, or as an inducement to remain in the employ of the employer for a certain period of time. Sums earned as bonuses are wages under the definition found in Labor Code Section 200.


C

camp counselor or program counselor

"Camp counselor or program counselor" means a staff member whose main responsibility involves either direct supervision of living-group campers or direct program relationships with campers.


cohabitant

"Cohabitant" means a person who regularly resides in the household. "Former cohabitant" means a person who formerly regularly resided in the household. Family Code Section 6209


collective bargaining agreement

An agreement negotiated between a labor union and an employer that sets forth the terms of employment for the employees who are subject to the agreement. This type of agreement may include provisions regarding wages, vacation time, working hours, working conditions, and health insurance benefits.


commission

Compensation paid to any person for services rendered in the sale of the employer's property or services and based upon the amount or value thereof. If the employee's compensation is based on a percentage of the cost or sale price of the product or service, then the compensation plan is a commission.


D

dating relationship

"Dating relationship" means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations. Family Code Section 6210


department

The Department of Industrial Relation, a California state agency. The Department is also known as "DIR."


DIR

See department


discriminatory/retaliatory act

An act and/or action, or series of acts and/or actions taken by an employer against an employee that adversely affects the employee in some aspect of his or her employment as a result of the employee exercising a protected right, engaging in a protected activity, or because the employee falls within a particular category specifically protected by law. An example of a discriminatory/retaliatory act would be an employer discharging an employee because he or she filed a wage claim against their employer with the Labor Commissioner's office.

In order to establish a prima facie case, the employee must show:

  1. That he or she engaged in a protected activity;
  2. That the employer took some adverse action against him or her; and
  3. That there exists a causal connection or nexus between the engaging in the protected activity and the employer's taking of the adverse action.

"Prima facie case" in context used above means a case will suffice until contradicted and overcome by other evidence.

"Engaged in protected activity" means the engaging in or exercising of a right that is protected by law. Some examples of "protected activity" under the Labor Code include:

  1. Filing or threatening to file a claim or complaint with the Labor Commissioner.
  2. Taking time off from work to serve on a jury or appear as a witness in court.
  3. Disclosing or discussing your wages.
  4. Using or attempting to use sick leave to attend to the illness of a child, parent, spouse, domestic partner, or child of the domestic partner of the employee.
  5. Engaging in political activity of your choice.
  6. For complaining about safety or health conditions or practices.

"Adverse action" is an act or action taken by an employer against an employee that works to the employee's detriment in some aspect of his or her employment, including a poor evaluation, surveillance, an unfavorable recommendation for a promotion, less desirable duties, a transfer, demotion, a cut in pay, or a discharge.


division

The Division of Labor Standards Enforcement. The Division is also known as "DLSE" and the "Labor Commissioner's Office." The Division is an agency within the Department of Industrial Relations. The Labor Commissioner is the Chief of the Division of Labor Standards Enforcement.


DLSE

See division


E

employ

To engage, suffer, or permit to work.


employee

Any person employed by an employer. Independent contractors and volunteers are not employees.


employee in the computer software field

Except as provided below in paragraph 5, an employee in the computer software field who is paid on an hourly basis shall be exempt under the professional exemption, if all of the following apply:

  1. The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment.

  2. The employee is primarily engaged in duties that consist of one or more of the following:

    • The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
    • The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to, user or system design specifications.
    • The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.

  3. The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of the exemption.

  4. The employee’s hourly rate of pay is not less than $41.00 [the rate in effect on September 19, 2000]. The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. Click here for adjusted rate information (pdf).

  5. The exemption described above does not apply to an employee if any of the following apply:

    1. The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering.
    2. The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision.
    3. The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment.
    4. The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation.
    5. The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for onscreen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computer-related media such as the World Wide Web or CD-ROMS.
    6. The employee is engaged in any of the activities set forth in nos. 1 through 4 above for the purpose of creating imagery for effect used in the motion picture, television, or theatrical industry.

employees in the healthcare industry

"Employees in the healthcare industry" means any of the following:

  1. Employees in the healthcare industry providing patient care; or
  2. Employees in the healthcare industry working in a clinical or medical department, including pharmacists dispensing prescriptions in any practice setting; or
  3. Employees in the healthcare industry working primarily or regularly as a member of a patient care delivery team.
  4. Licensed veterinarians, registered veterinary technicians and unregistered animal health technicians providing patient care.

employer

Any person, association, organization, partnership, business trust, limited liability company, or corporation who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.


ERISA

Employee Retirement Income Security Act, a federal law.


executive exemption

A person employed in an executive capacity means any employee:

  1. Whose duties and responsibilities involve the management of the enterprise in which he or she is employed or of a customarily recognized department or subdivision thereof; and
  2. Who customarily and regularly directs the work of two or more other employees therein; and
  3. Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and
  4. Who customarily and regularly exercises discretion and independent judgment; and
  5. Who is primarily engaged in duties, which meet the test of the exemption.
  6. An executive employee must also earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment means 40 hours per week as defined in Labor Code Section 515(c).

With respect to the requirement that management duties must be exercised over the entire enterprise or a customarily recognized department or subdivision thereof, it is important to note that the phrase "customarily recognized department or subdivision thereof" has a particular meaning. The phrase is intended to distinguish between " a mere collection of employees assigned from time to time to a specific job or series of jobs" and " a unit with permanent status and function." Thus, in order to meet the criteria of a managerial employee, one must be more than merely a supervisor of two or more employees. The managerial exempt employee must be in charge of the unit, not simply participate in the management of the unit.

The IWC Orders require as a basic condition for the executive exemption that the manager must supervise two or more employees. This may be one full-time and two half-time employees. It has been the experience of the DLSE that a managerial employee supervising as few as two employees rarely spends as much as 50% of his or her time primarily engaged in managerial duties.

Regarding the requirement for the exemption to apply that the employee "customarily and regularly exercises discretion and independent judgment," this phrase means the comparison and evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The employee must have the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance. With respect to the executive exemption, the most frequent cause of misapplication of the phrase "discretion and independent judgment" is the failure to distinguish discretion and independent judgment from the use of independent managerial skills. An employee who merely applies his or her memory in following prescribed procedures or determining which required procedure out of the company manual to follow, is not exercising discretion and independent judgment.


exempt

Exempt status deprives an employee of certain protections of the Industrial Welfare Commission Orders.

The exemption has far-reaching ramifications since exempt status deprives the employee not only of the right to overtime compensation, but also to many of the other protections afforded to nonexempt employees by such orders. Some of the protections that do not apply to exempt employees are:

Section 3, overtime premium;

Section 4, minimum wage;

Section 5, reporting time pay;

Section 7, requirement of records under the IWC Orders (but not records required by the Labor Code);

Section 9, requirement that employer furnish uniforms and equipment (except, of course, that any expenditure by an employee is recoverable under Labor Code Section 2802).

Section 10, requirement that meals and lodging amounts be limited;

Section 11, meal period requirement; and

Section 12, rest period requirement.


F

F.L.S.A.

See Fair Labor Standards Act.


Fair Labor Standards Act

The Fair Labor Standards Act (F.L.S.A.) is a comprehensive federal wage and hour law that is the principal source of federal wage and hour regulation for most employers, covering a myriad of areas including minimum wage, overtime pay requirements and child labor.


for a definite period of time

If a written contract of employment contains a specific term of employment (at least one month, see Labor Code Section 2922) and is not terminable by either party except for cause, then the contract is one for "a definite period of time." If, on the other hand, either party may, during the term of the contract, terminate the employment simply by giving notice of such intention to the other party, then it is not a written contract for a definite period of time.


G

good faith dispute

A "good faith dispute" that any wages are due occurs when an employer presents a defense, based in law or fact which, if successful, would preclude any recovery on the part of the employee. The fact that a defense is ultimately unsuccessful will not preclude a finding that a "good faith dispute" did exist if the defense was reasonable and presented in good faith. Defenses presented, which, under all the circumstances, are unsupported by any evidence, are unreasonable, or are presented in bad faith, will preclude a finding of a "good faith dispute." Title 8, California Code of Regulations, Section 13520


gratuity

Gratuity means any tip, gratuity, money, or part thereof that has been paid or given to or left for an employee by a patron of a business over and above the actual amount due the business for services rendered or for goods, food, drink, or articles sold or served to the patron. Any amounts paid directly by a patron to a dancer employed by an employer subject to IWC Order No. 5 or 10 shall be deemed a gratuity. Labor Code Section 350(e)


gross negligence

"Gross" negligence has been defined as an extreme departure from the ordinary standard of conduct, as an entire failure to exercise care, as the exercise of so slight a degree of care as to justify the belief that there was an indifference to the interest and welfare of others, and as that want of care that raises a presumption of conscious indifference to consequences. A determination of gross negligence is a legal conclusion that can only be arrived at by a court of law.

The distinction between ordinary negligence and gross negligence amounts to a rule of policy that a failure to exercise due care in those situations where the risk of harm is great will give rise to legal consequences harsher than those arising from negligence in less hazardous situations.


H

Health and Safety Code Section 1596.881

1596.881. No employer shall discharge, demote, or suspend, or threaten to discharge, demote, or suspend, or in any manner discriminate against any employee who takes any of the following actions:

  1. Makes any good faith oral or written complaint of the violation of any licensing or other laws by the employer to the State Department of Social Services or other agency having statutory responsibility for enforcement of the law or to the employer or representative of the employer.
  2. Institutes, or causes to be instituted, any proceeding against the employer in relation to the violation of any licensing or other laws.
  3. Is, or will be, a witness or testify in a proceeding in relation to the violation of any licensing or other laws.
  4. Refuses to perform work in violation of a licensing law or regulation after notifying the employer of the violation.

Employees shall be notified in writing at the time of employment of their rights under this chapter, as evidenced by their signature on a notification form outlining actions protected by this section. Forms to be utilized for this purpose shall be kept on file at the facility. The department shall provide each facility with the notification forms, which shall include information regarding enforcement pursuant to relevant Labor Code sections.

"Other laws" for the purposes of this section, includes, but is not limited to, laws relating to staff-child ratios, transportation of children, or child abuse.


healthcare industry

"Healthcare industry" is defined in IWC Orders 4 and 5, and means "hospitals, skilled nursing facilities, intermediate care and residential care facilities, convalescent care institutions, home health agencies, clinics operating 24-hour per day, and clinics performing surgery, urgent care, radiology, anesthesiology, pathology, neurology or dialysis."

The term "clinic" does not apply to a physician's office unless the office meets the requirements of a "clinic" given above.


holidays

"Holidays" under Government Code Section 19853 means:

January 1 (New Year's Day)

Third Monday in January (Martin Luther King, Jr. Day)

Third Monday in February (President's Day)

March 31 (Cesar Chavez Day)

Last Monday in May (Memorial Day)

July 4 (Independence Day)

First Monday in September (Labor Day)

November 11 (Veteran's Day)

Thanksgiving Day

Day after Thanksgiving

December 25 (Christmas)

Other days designated by the governor for a public fast, thanksgiving, or holiday.

In addition to the above, under Government Code Section 6700 every Sunday is considered a "holiday," and under Code of Civil Procedure Section 12a, "holiday" means all day on Saturdays.

The significance of which days are "holidays" is that whenever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be performed upon a particular day, which day falls upon a holiday, it may be performed upon the next business day with the same effect as if it had been performed upon the day appointed. Thus, for example, if the regularly scheduled payday is the 20th of the month, and the 20th falls on a Sunday, the wages for that payroll period may be paid on Monday.

Just because a day is designated by the state as a "holiday," does not mean that an employee automatically gets that day off. Time off from work on a holiday, with or without pay, is entirely (1) at the discretion of the employer, or (2) pursuant to the terms of a collective bargaining or similar type of agreement, or (3) pursuant to the terms of a private agreement between the employer and employee.

And just because an employee works on a holiday does not mean that the employer must pay the employee at a rate other than the employee's regular rate of pay, as any premium pay to reward the employee for working on the holiday is entirely (1) at the discretion of the employer, or (2) pursuant to the terms of a collective bargaining or similar type of agreement, or (3) pursuant to the terms of a private agreement between the employer and employee.

And if an employee gets a paid day off for a holiday, such day is not counted for determining overtime for that workweek as no hours were worked on the holiday.


hours worked

The time during which an employee is subject to the control of an employer, including all the time the employee is suffered or permitted to work, whether or not required to do so.


household occupations

"Household occupations" means all services related to the care of persons or maintenance of a private household or its premises by an employee of a private householder. Said occupations shall include, but not be limited to, the following: butlers, chauffeurs, companions, cooks, day workers, gardeners, graduate nurses, grooms, house cleaners, housekeepers, maids, practical nurses, tutors, valets, and other similar occupations.


I

Industrial Welfare Commission

A commission made up of five members appointed by the Governor with the consent of the Senate that is responsible for setting the wages, hours of work, and working conditions of California employees. The Industrial Welfare Commission is within the Department of Industrial Relations. The Industrial Welfare Commission is also known as the "IWC."


Industrial Welfare Commission Wage Orders

Orders of the Industrial Welfare Commission regulating the wages, hours, and working conditions in certain industries or occupations. There are 17 such orders that are also known as "IWC Orders," or "Wage Orders."


IWC

See Industrial Welfare Commission


IWC Order

See Industrial Welfare Commission Wage Orders


L

labor

Labor includes labor, work, or service whether rendered or performed under contract, subcontract, partnership, station plan, or other agreement if the labor to be paid for is performed personally by the person demanding payment. Labor Code Section 200(b)


Labor Commissioner

The executive officer that is the Chief of the Division of Labor Standards Enforcement.


Labor Commissioner's Office

See Division


learners

Employees during their first 160 hours of employment working in occupations in which they have no previous similar or related experience. A learner may be of any age.


M

major fraction thereof

In connection with rest period requirements, anything more than two hours.


minimum wage

The minimum amount of compensation per hour that an employer is required by law to pay an employee for all hours worked.


minor

Any person under the age of 18 years.


N

negligence

Negligence means the omission to do something that a reasonable person, guided by those considerations that ordinarily regulate the conduct of human affairs, would do, or the doing of something that a prudent and reasonable person would not do. Negligence is not an absolute term, but a relative one, and whether or not a particular act or omission constitutes negligence depends by definition on the particular circumstances, considering especially the time, place, and persons involved. A determination of negligence is a legal conclusion that can only be arrived at by a court of law.


net 10 minutes

A rest period is defined as a "net" 10 minutes, and means that the rest period begins when the employee reaches an area away from the work area that is appropriate for rest. Employers are required to provide suitable resting facilities that shall be available for employees during working hours in an area separate from the toilet rooms.


no significant amount of work other than the foregoing

The term "no significant amount of work other than the foregoing" means not more than 20% of the work time. Usually, "such other work" involves housekeeping duties such as cleaning house, washing dishes and clothes, ironing, and grocery shopping.


nonexempt

Nonexempt status means that the provisions of the Industrial Welfare Commission Orders cover an employee.


O

organized camp

"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.

The term "organized camp" does not include a motel, tourist camp, trailer park, resort, hunting camp, auto court, labor camp, penal or correctional camp, child care institution, home-finding agency, or any charitable or recreational organization which complies with the rules and regulations for recreational trailer parks provided by Health and Safety Code Section 18897(a).


outside salesperson

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.


overnight trip

An "overnight trip" is comprised of a maximum of 12 hours worked within a period of no less than 24 hours compensated at a rate of no less than 12 times the hourly minimum wage.


P

personal attendant

(IWC Order 5-2001)

"Personal attendant" includes babysitters and means any person employed by a nonprofit organization covered by IWC Order 5-2001 to supervise, feed or dress a child or person who by reason of advanced age, physical disability or mental deficiency needs supervision. The status of "personal attendant" shall apply when no significant amount of work other than the foregoing is required.


personal attendant

(IWC Order 15-2001)

"Personal attendant" includes babysitters and means any person employed by a private householder or by any third party employer recognized in the healthcare industry to work in a private household, to supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of "personal attendant" shall apply when no significant amount of work other than the foregoing is required.


piece rate

Work that is paid for according to the number of units turned out. A "piece rate" must be based on an ascertainable figure paid for completing a particular task or making a particular piece of goods. Examples of piece rate plans include the following:

  1. Automobile mechanics paid on a "book rate" (that is, a brake job, one hour and fifty minutes, tune-up, one hour, etc.) usually based upon a pre-set standard.
  2. Nurses paid on the basis of the number of procedures performed.
  3. Carpet layer paid by the yard of carpet laid.
  4. Technician paid by the number of telephones installed.
  5. Factory worker paid by the number of widgets completed.
  6. Carpenter paid by the linear foot on a framing job.
  7. Truck driver paid by the number of loads hauled.

piecework

See "piece rate."


primarily engaged in

Each of the exemptions - administrative, executive and professional - require that the employee be "primarily engaged in" the duties which meet the test for the exemption. The term "primarily engaged in" means that more than one-half of the employee's work time must be spent engaged in exempt work and differs substantially from the federal test which simply requires that the "primary duty" of the employee falls within the exempt duties.


professional exemption

A person employed in a professional capacity means any employee who meets all of the following requirements:

  1. Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting, or
  2. Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. "Learned or artistic profession" means an employee who is primarily engaged in the performance of:
    1. Work requiring knowledge of an advance type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or
    2. Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and
    3. Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.
  4. Who customarily and regularly exercised discretion an independent judgment in the performance of duties set forth above.
  5. Who 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 per week as defined in Labor Code Section 515(c).

Regarding the requirement for the exemption to apply that the employee "customarily and regularly exercises discretion and independent judgment," this phrase means the comparison and evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The employee must have the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance.

For the learned professions, an advanced academic degree (above the bachelor level) is a standard prerequisite.

For the artistic professions, work in a "recognized field of artistic endeavor" includes such fields as music, writing, the theater, and the plastic and graphic arts.


protected activity

The engaging in or exercising of a right that is protected by law. Some examples of "protected activity" under the Labor Code include:

  1. Filing or threatening to file a claim or complaint with the Labor Commissioner.
  2. Taking time off from work to serve on a jury or appear as a witness in court.
  3. Disclosing or discussing your wages.
  4. Using or attempting to use sick leave to attend to the illness of a child, parent, spouse, domestic partner, or child of the domestic partner of the employee.
  5. Engaging in political activity of your choice.
  6. For complaining about safety or health conditions or practices.

R

regular rate of pay

The "regular rate of pay" is the compensation an employee normally earns for the work they perform. The regular rate of pay includes a number of different kinds of remuneration, such as hourly earnings, salary, piecework earnings, and commissions. In no case may the regular rate of pay be less than the applicable minimum wage


S

sheepherder

Any individual who tends flocks of sheep grazing on range or pasture; who moves sheep to and about an area assigned for grazing; who prevents sheep from wandering or becoming lost, or uses trained dogs to round up strays and protect sheep against predators and the eating of poisonous plants; who assists in the lambing, docking and shearing of sheep; who provides water or feeds sheep supplementary rations; and who performs such duties pursuant to an approved order filed under the federal "H2A" program or any successor program.


shift

The designated hours of work for an employee, with a designated beginning time and quitting time.


State holidays

See "holidays"


student employee

"Student employee" means an employee who is enrolled in high school, or in an accredited two-year community college or accredited four-year college or university, or who was so enrolled in the school semester or quarter or trimester most recently completed, provided the student attended school at least nine hours per week in such most recent school period and is pursuing a course of study aimed at receiving a diploma or degree.


V

victim of domestic violence

A "victim of domestic violence" is any of the following persons against whom the abuse is perpetrated:

  1. A spouse or former spouse.
  2. A cohabitant or former cohabitant.
  3. A person who is having or has had a dating or engagement relationship with the perpetrator of the violence.
  4. A person who has had a child by the perpetrator of the violence.
  5. A child of a party.
  6. Any other person related by consanguinity or affinity within the second degree. Family Code Section 6211

W

wage orders

See Industrial Welfare Commission Orders


wages

All amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. Labor Code Section 200(a) A "wage" is defined as money or other value that is received by an employee as compensation for labor or services performed. "Other value" could include room, board, clothes, and other benefits to which the employee is entitled as a part of his or her compensation.


willful failure to pay wages

A "willful" failure to pay wages within the meaning of Labor Code Section 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due. However, a good faith dispute that any wages are due will preclude imposition of waiting time penalties under Labor Code Section 203. Title 8, California Code of Regulations, Section 13520 The term "willful" as used in Labor Code Section 203 and as defined in civil court decisions does not necessarily imply anything blameworthy or evil intent, but rather that the person knows what he or she is doing, is a free agent, and fails to perform a required act.


workday

"Workday" is defined in the Industrial Welfare Commission Orders and Labor Code §500 for the purpose of determining when daily overtime is due. A workday is a consecutive 24-hour period beginning at the same time each calendar day, but it may begin at any time of day. The beginning of an employee’s workday need not coincide with the beginning of that employee’s shift, and an employer may establish different workdays for different shifts. However, once a workday is established it may be changed only if the change is intended to be permanent and the change is not designed to evade overtime obligations. Daily overtime is due based on the hours worked in any given workday; and the averaging of hours over two or more workdays is not allowed.


workweek

Any seven consecutive days, starting with the same calendar day each week beginning at any hour on any day, so long as it is fixed and regularly occurring. "Workweek" is a fixed and regularly recurring period of 168 hours, seven consecutive 24-hour periods. An employer may establish different workweeks for different employees, but once an employee's workweek is established, it remains fixed regardless of his or her working schedule. An employee's workweek may be changed only if the change is intended to be permanent and is not designed to evade the employer's overtime obligation.