200-243
LABOR CODE
SECTION 200-243
200. As used in this article: (a) "Wages" includes 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.
(b) "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.
201. (a) If an employer discharges an employee, the wages earned
and unpaid at the time of discharge are due and payable immediately.
An employer who lays off a group of employees by reason of the
termination of seasonal employment in the curing, canning, or drying
of any variety of perishable fruit, fish or vegetables, shall be
deemed to have made immediate payment when the wages of said
employees are paid within a reasonable time as necessary for
computation and payment thereof; provided, however, that the
reasonable time shall not exceed 72 hours, and further provided that
payment shall be made by mail to any employee who so requests and
designates a mailing address therefor.
(b) Notwithstanding any other provision of law, the state employer
shall be deemed to have made an immediate payment of wages under
this section for any unused or accumulated vacation, annual leave,
holiday leave, or time off to which the employee is entitled by
reason of previous overtime work where compensating time off was
given by the appointing power, provided, at least five workdays prior
to his or her final day of employment, the employee submits a
written election to his or her appointing power authorizing the state
employer to tender payment for any or all leave to be contributed on
a pretax basis to the employee's account in a state-sponsored
supplemental retirement plan as described under Sections 401(k), 403
(b), or 457 of the Internal Revenue Code provided the plan allows
those contributions. The contribution shall be tendered for payment
to the employee's 401(k), 403(b), or 457 plan account no later than
45 days after the employee's discharge from employment. Nothing in
this section is intended to authorize contributions in excess of the
annual deferral limits imposed under federal and state law or the
provisions of the supplemental retirement plan itself.
(c) Notwithstanding any other provision of law, when the state
employer discharges an employee, the employee may, at least five
workdays prior to his or her final day of employment, submit a
written election to his or her appointing power authorizing the state
employer to defer into the next calendar year payment of any or all
of the employee's unused or accumulated vacation, annual leave,
holiday leave, or time off to which the employee is entitled by
reason of previous overtime work where compensating time off was
given by the appointing power. To qualify for the deferral of payment
under this section, only that portion of leave that extends past the
November pay period for state employees shall be deferred into the
next calendar year. An employee electing to defer payment into the
next calendar year under this section may do any of the following:
(1) Contribute the entire payment to his or her 401(k), 403(b), or
457 plan account.
(2) Contribute any portion of the deferred payment to his or her
401(k), 403(b), or 457 plan account and receive cash payment for the
remaining noncontributed unused leave.
(3) Receive a lump-sum payment for all of the deferred unused
leave as described above.
Payments shall be tendered under this section no later than
February 1 in the year following the employee's last day of
employment. Nothing in this section is intended to authorize
contributions in excess of the annual deferral limits imposed under
federal and state law or the provisions of the supplemental
retirement plan itself.
201.3. (a) For purposes of this section, the following definitions
apply:
(1) "Temporary services employer" means an employing unit that
contracts with clients or customers to supply workers to perform
services for the clients or customers and that performs all of the
following functions:
(A) Negotiates with clients and customers for matters such as the
time and place where the services are to be provided, the type of
work, the working conditions, and the quality and price of the
services.
(B) Determines assignments or reassignments of workers, even if
workers retain the right to refuse specific assignments.
(C) Retains the authority to assign or reassign a worker to
another client or customer when the worker is determined unacceptable
by a specific client or customer.
(D) Assigns or reassigns workers to perform services for clients
or customers.
(E) Sets the rate of pay of workers, whether or not through
negotiation.
(F) Pays workers from its own account or accounts.
(G) Retains the right to hire and terminate workers.
(2) "Temporary services employer" does not include any of the
following:
(A) A bona fide nonprofit organization that provides temporary
service employees to clients.
(B) A farm labor contractor, as defined in subdivision (b) of
Section 1682.
(C) A garment manufacturing employer, which, for purposes of this
section, has the same meaning as "contractor," as defined in
subdivision (d) of Section 2671.
(3) "Employing unit" has the same meaning as defined in Section
135 of the Unemployment Insurance Code.
(4) "Client" and "customer" means the person with whom a temporary
services employer has a contractual relationship to provide the
services of one or more individuals employed by the temporary
services employer.
(b) (1) Except as provided in paragraphs (2) to (5), inclusive, if
an employee of a temporary services employer is assigned to work for
a client, that employee's wages are due and payable no less
frequently than weekly, regardless of when the assignment ends, and
wages for work performed during any calendar week shall be due and
payable not later than the regular payday of the following calendar
week. A temporary services employer shall be deemed to have timely
paid wages upon completion of an assignment if wages are paid in
compliance with this subdivision.
(2) If an employee of a temporary services employer is assigned to
work for a client on a day-to-day basis, that employee's wages are
due and payable at the end of each day, regardless of when the
assignment ends, if each of the following occurs:
(A) The employee reports to or assembles at the office of the
temporary services employer or other location.
(B) The employee is dispatched to a client's worksite each day and
returns to or reports to the office of the temporary services
employer or other location upon completion of the assignment.
(C) The employee's work is not executive, administrative, or
professional, as defined in the wage orders of the Industrial Welfare
Commission, and is not clerical.
(3) If an employee of a temporary services employer is assigned to
work for a client engaged in a trade dispute, that employee's wages
are due and payable at the end of each day, regardless of when the
assignment ends.
(4) If an employee of a temporary services employer is assigned to
work for a client and is discharged by the temporary services
employer or leasing employer, wages are due and payable as provided
in Section 201.
(5) If an employee of a temporary services employer is assigned to
work for a client and quits his or her employment with the temporary
services employer, wages are due and payable as provided in Section
202.
(6) If an employee of a temporary services employer is assigned to
work for a client for over 90 consecutive calendar days, this
section shall not apply unless the temporary services employer pays
the employee weekly in compliance with paragraph (1) of subdivision
(b).
(c) A temporary services employer who violates this section shall
be subject to the civil penalties provided for in Section 203, and to
any other penalties available at law.
(d) Nothing in this section shall be interpreted to limit any
rights or remedies otherwise available under state or federal law.
201.5. (a) For purposes of this section, the following definitions
apply:
(1) "An employee engaged in the production or broadcasting of
motion pictures" means an employee to whom both of the following
apply:
(A) The employee's job duties relate to or support the production
or broadcasting of motion pictures or the facilities or equipment
used in the production or broadcasting of motion pictures.
(B) The employee is hired for a period of limited duration to
render services relating to or supporting a particular motion picture
production or broadcasting project, or is hired on the basis of one
or more daily or weekly calls.
(2) "Daily or weekly call" means an employment that, by its terms,
will expire at the conclusion of one day or one week, unless
renewed.
(3) "Next regular payday" means the day designated by the
employer, pursuant to Section 204, for payment of wages earned during
the payroll period in which the termination occurs.
(4) "Production or broadcasting of motion pictures" means the
development, creation, presentation, or broadcasting of theatrical or
televised motion pictures, television programs, commercial
advertisements, music videos, or any other moving images, including,
but not limited to, productions made for entertainment, commercial,
religious, or educational purposes, whether these productions are
presented by means of film, tape, live broadcast, cable, satellite
transmission, Web cast, or any other technology that is now in use or
may be adopted in the future.
(b) An employee engaged in the production or broadcasting of
motion pictures whose employment terminates is entitled to receive
payment of the wages earned and unpaid at the time of the termination
by the next regular payday.
(c) The payment of wages to employees covered by this section may
be mailed to the employee or made available to the employee at a
location specified by the employer in the county where the employee
was hired or performed labor. The payment shall be deemed to have
been made on the date that the employee's wages are mailed to the
employee or made available to the employee at the location specified
by the employer, whichever is earlier.
(d) For purposes of this section, an employment terminates when
the employment relationship ends, whether by discharge, lay off,
resignation, completion of employment for a specified term, or
otherwise.
(e) Nothing in this section prohibits the parties to a valid
collective bargaining agreement from establishing alternative
provisions for final payment of wages to employees covered by this
section if those provisions do not exceed the time limitation
established in Section 204.
201.7. An employer who lays off an employee or a group of employees
engaged in the business of oil drilling shall be deemed to have made
immediate payment within the meaning of Section 201 if the wages of
such employees are paid within such reasonable time as may be
necessary for computation or payment thereof; provided, however, that
such reasonable time shall not exceed 24 hours after discharge
excluding Saturdays, Sundays, and holidays; and provided further,
such payment may be mailed and the date of mailing is the date of
payment.
The Legislature finds and determines that special provision must
be made for the payment of wages on discharge of employees engaged in
oil drilling because their employment at various locations is often
far removed from the employer's principal administrative offices,
which makes the computation and payment of wages on an immediate
basis unduly burdensome.
201.9. Notwithstanding subdivision (a) of Section 201, if employees
are employed at a venue that hosts live theatrical or concert events
and are enrolled in and routinely dispatched to employment through a
hiring hall or other system of regular short-term employment
established in accordance with a bona fide collective bargaining
agreement, these employees and their employers may establish by
express terms in their collective bargaining agreement the time
limits for payment of wages to an employee who is discharged or laid
off.
202. (a) If an employee not having a written contract for a
definite period quits his or her employment, his or her wages shall
become due and payable not later than 72 hours thereafter, unless the
employee has given 72 hours previous notice of his or her intention
to quit, in which case the employee is entitled to his or her wages
at the time of quitting. Notwithstanding any other provision of law,
an employee who quits without providing a 72-hour notice shall be
entitled to receive payment by mail if he or she so requests and
designates a mailing address. The date of the mailing shall
constitute the date of payment for purposes of the requirement to
provide payment within 72 hours of the notice of quitting.
(b) Notwithstanding any other provision of law, the state employer
shall be deemed to have made an immediate payment of wages under
this section for any unused or accumulated vacation, annual leave,
holiday leave, sick leave to which the employee is otherwise entitled
due to a disability retirement, or time off to which the employee is
entitled by reason of previous overtime work where compensating time
off was given by the appointing power, provided at least five
workdays prior to his or her final day of employment, the employee
submits a written election to his or her appointing power authorizing
the state employer to tender payment for any or all leave to be
contributed on a pretax basis to the employee's account in a
state-sponsored supplemental retirement plan as described under
Sections 401(k), 403(b), or 457 of the Internal Revenue Code provided
the plan allows those contributions. The contribution shall be
tendered for payment to the employee's 401(k), 403(b), or 457 plan
account no later than 45 days after the employee's last day of
employment. Nothing in this section is intended to authorize
contributions in excess of the annual deferral limits imposed under
federal and state law or the provisions of the supplemental
retirement plan itself.
(c) Notwithstanding any other provision of law, when a state
employee quits, retires, or disability retires from his or her
employment with the state, the employee may, at least five workdays
prior to his or her final day of employment, submit a written
election to his or her appointing power authorizing the state
employer to defer into the next calendar year payment of any or all
of the employee's unused or accumulated vacation, annual leave,
holiday leave, sick leave to which the employee is otherwise entitled
due to a disability, retirement, or time off to which the employee
is entitled by reason of previous overtime work where compensating
time off was given by the appointing power. To qualify for the
deferral of payment under this section, only that portion of leave
that extends past the November pay period for state employees shall
be deferred into the next calendar year under this section may do any
of the following:
(1) Contribute the entire payment to his or her 401(k), 403(b), or
457 plan account.
(2) Contribute any portion of the deferred payment to his or her
401(k), 403(b), or 457 plan account and receive cash payment for the
remaining noncontributed unused leave.
(3) Receive a lump-sum payment for all of the deferred unused
leave as described above.
Payments shall be tendered under this section no later than
February 1 in the year following the employee's last day of
employment. Nothing in this section is intended to authorize
contributions in excess of the annual deferral limits imposed under
federal and state law or the provisions of the supplemental
retirement plan itself.
203. (a) If an employer willfully fails to pay, without abatement
or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and
205.5, any wages of an employee who is discharged or who quits, the
wages of the employee shall continue as a penalty from the due date
thereof at the same rate until paid or until an action therefor is
commenced; but the wages shall not continue for more than 30 days. An
employee who secretes or absents himself or herself to avoid payment
to him or her, or who refuses to receive the payment when fully
tendered to him or her, including any penalty then accrued under this
section, is not entitled to any benefit under this section for the
time during which he or she so avoids payment.
(b) Suit may be filed for these penalties at any time before the
expiration of the statute of limitations on an action for the wages
from which the penalties arise.
203.1. If an employer pays an employee in the regular course of
employment or in accordance with Section 201, 201.3, 201.5, 201.7, or
202 any wages or fringe benefits, or both, by check, draft or
voucher, which check, draft or voucher is subsequently refused
payment because the employer or maker has no account with the bank,
institution, or person on which the instrument is drawn, or has
insufficient funds in the account upon which the instrument is drawn
at the time of its presentation, so long as the same is presented
within 30 days of receipt by the employee of the check, draft or
voucher, those wages or fringe benefits, or both, shall continue as a
penalty from the due date thereof at the same rate until paid or
until an action therefor is commenced. However, those wages and
fringe benefits shall not continue for more than 30 days and this
penalty shall not apply if the employer can establish to the
satisfaction of the Labor Commissioner or an appropriate court of law
that the violation of this section was unintentional. This penalty
also shall not apply in any case in which an employee recovers the
service charge authorized by Section 1719 of the Civil Code in an
action brought by the employee thereunder.
203.5. (a) If a bonding company issuing a bond which secures the
payment of wages for labor or the surety on a bond willfully fails to
pay, without abatement or reduction, any verified claim made for
wages found to be due and payable, the claim for wages shall continue
as a penalty against the bonding company or surety from the date on
which demand for payment was made at the same rate until paid as the
wages upon which the claim is based, except that the claim shall not
continue as a penalty for more than 30 days.
(b) This section shall not apply to contractor's bonds required
pursuant to Section 7071.6 of the Business and Professions Code.
204. (a) All wages, other than those mentioned in Section 201,
201.3, 202, 204.1, or 204.2, earned by any person in any employment
are due and payable twice during each calendar month, on days
designated in advance by the employer as the regular paydays. Labor
performed between the 1st and 15th days, inclusive, of any calendar
month shall be paid for between the 16th and the 26th day of the
month during which the labor was performed, and labor performed
between the 16th and the last day, inclusive, of any calendar month,
shall be paid for between the 1st and 10th day of the following
month. However, salaries of executive, administrative, and
professional employees of employers covered by the Fair Labor
Standards Act, as set forth pursuant to Section 13(a)(1) of the Fair
Labor Standards Act, as amended through March 1, 1969, in Part 541 of
Title 29 of the Code of Federal Regulations, as that part now reads
or may be amended to read at any time hereafter, may be paid once a
month on or before the 26th day of the month during which the labor
was performed if the entire month's salaries, including the unearned
portion between the date of payment and the last day of the month,
are paid at that time.
(b) (1) Notwithstanding any other provision of this section, all
wages earned for labor in excess of the normal work period shall be
paid no later than the payday for the next regular payroll period.
(2) An employer is in compliance with the requirements of
subdivision (a) of Section 226 relating to total hours worked by the
employee, if hours worked in excess of the normal work period during
the current pay period are itemized as corrections on the paystub for
the next regular pay period. Any corrections set out in a
subsequently issued paystub shall state the inclusive dates of the
pay period for which the employer is correcting its initial report of
hours worked.
(c) However, when employees are covered by a collective bargaining
agreement that provides different pay arrangements, those
arrangements shall apply to the covered employees.
(d) The requirements of this section shall be deemed satisfied by
the payment of wages for weekly, biweekly, or semimonthly payroll if
the wages are paid not more than seven calendar days following the
close of the payroll period.
204a. When workers are engaged in an employment that normally
involves working for several employers in the same industry
interchangeably, and the several employers, or some of them,
cooperate to establish a plan for the payment of wages at a central
place or places and in accordance with a unified schedule of pay
days, all the provisions of this chapter except 201, 202, and 208
shall apply. All such workers, including those who have been
discharged and those who quit, shall receive their wages at such
central place or places.
This section shall not apply to any such plan until 10 days after
notice of their intention to set up such a plan shall have been given
to the Labor Commissioner by the employers who cooperate to
establish the plan. Having once been established, no such plan can be
abandoned except after notice of their intention to abandon such
plan has been given to the Labor Commissioner by the employers
intending to abandon the plan.
204b. Section 204 shall be inapplicable to employees paid on a
weekly basis on a regular day designated by the employer in advance
of the rendition of services as the regular payday.
Labor performed by a weekly-paid employee during any calendar week
and prior to or on the regular payday shall be paid for not later
than the regular payday of the employer for such weekly-paid employee
falling during the following calendar week.
Labor performed by a weekly-paid employee during any calendar week
and subsequent to the regular payday shall be paid for not later
than seven days after the regular payday of the employer for such
weekly-paid employee falling during the following calendar week.
204c. Section 204 shall be inapplicable to executive,
administrative or professional employees who are not covered by any
collective bargaining agreement, who are not subject to the Fair
Labor Standards Act, whose monthly remuneration does not include
overtime pay, and who are paid within seven days of the close of
their monthly payroll period.
204.1. Commission wages paid to any person employed by an employer
licensed as a vehicle dealer by the Department of Motor Vehicles are
due and payable once during each calendar month on a day designated
in advance by the employer as the regular payday. Commission wages
are compensation paid to any person for services rendered in the sale
of such employer's property or services and based proportionately
upon the amount or value thereof.
The provisions of this section shall not apply if there exists a
collective bargaining agreement between the employer and his
employees which provides for the date on which wages shall be paid.
204.2. Salaries of executive, administrative, and professional
employees of employers covered by the Fair Labor Standards Act, as
set forth pursuant to Section 13(a)(1) of the Fair Labor Standards
Act of 1938, as amended through March 1, 1969, (Title 29, Section 213
(a)(1), United States Code) in Part 541 of Title 29 of the Code of
Federal Regulations, as that part now reads, earned for labor
performed in excess of 40 hours in a calendar week are due and
payable on or before the 26th day of the calendar month immediately
following the month in which such labor was performed. However, when
such employees are covered by a collective bargaining agreement that
provides different pay arrangements, those arrangements will apply to
the covered employees.
204.3. (a) An employee may receive, in lieu of overtime
compensation, compensating time off at a rate of not less than one
and one-half hours for each hour of employment for which overtime
compensation is required by law. If an hour of employment would
otherwise be compensable at a rate of more than one and one-half
times the employee's regular rate of compensation, then the employee
may receive compensating time off commensurate with the higher rate.
(b) An employer may provide compensating time off under
subdivision (a) if the following four conditions are met:
(1) The compensating time off is provided pursuant to applicable
provisions of a collective bargaining agreement, memorandum of
understanding, or other written agreement between the employer and
the duly authorized representative of the employer's employees; or,
in the case of employees not covered by the aforementioned agreement
or memorandum of understanding, pursuant to a written agreement
entered into between the employer and employee before the performance
of the work.
(2) The employee has not accrued compensating time in excess of
the limit prescribed by subdivision (c).
(3) The employee has requested, in writing, compensating time off
in lieu of overtime compensation.
(4) The employee is regularly scheduled to work no less than 40
hours in a workweek.
(c) (1) An employee may not accrue more than 240 hours of
compensating time off. Any employee who has accrued 240 hours of
compensating time off shall, for any additional overtime hours of
work, be paid overtime compensation.
(2) If compensation is paid to an employee for accrued
compensating time off, the compensation shall be paid at the regular
rate earned by the employee at the time the employee receives
payment.
(d) An employee who has accrued compensating time off authorized
to be provided under subdivision (a) shall, upon termination of
employment, be paid for the unused compensating time at a rate of
compensation not less than the average regular rate received by the
employee during the last three years of the employee's employment, or
the final regular rate received by the employee, whichever is
higher.
(e) (1) An employee who has accrued compensating time off
authorized to be provided under subdivision (a), and who has
requested the use of that compensating time, shall be permitted by
the employee's employer to use the time within a reasonable period
after making the request, if the use of the compensating time does
not unduly disrupt the operations of the employer.
(2) Upon the request of an employee, the employer shall pay
overtime compensation in cash in lieu of compensating time off for
any compensating time off that has accrued for at least two pay
periods.
(3) For purposes of determining whether a request to use
compensating time has been granted within a reasonable period, the
following factors shall be relevant:
(A) The normal schedule of work.
(B) Anticipated peak workloads based on past experience.
(C) Emergency requirements for staff and services.
(D) The availability of qualified substitute staff.
(f) Every employer shall keep records that accurately reflect
compensating time earned and used.
(g) For purposes of this section, the terms "compensating time"
and "compensating time off" mean hours during which an employee is
not working, which are not counted as hours worked during the
applicable workweek or other work period for purposes of overtime
compensation, and for which the employee is compensated at the
employee's regular rate.
(h) This section shall not apply to any employee exempt from the
overtime provisions of the California wage orders.
(i) This section shall not apply to any employee who is subject to
the following wage orders of the Industrial Welfare Commission:
Orders No. 8-80, 13-80, and 14-80 (affecting industries handling
products after harvest, industries preparing agricultural products
for market on the farm, and agricultural occupations), Order No. 3-80
(affecting the canning, freezing, and preserving industry), Orders
No. 5-89 and 10-89 (affecting the public housekeeping and amusement
and recreation industries), and Order No. 1-89 (affecting the
manufacturing industry).
205. In agricultural, viticultural, and horticultural pursuits, in
stock or poultry raising, and in household domestic service, when the
employees in such employments are boarded and lodged by the
employer, the wages due any employee remaining in such employment
shall become due and payable once in each calendar month on a day
designated in advance by the employer as the regular payday. No two
successive paydays shall be more than 31 days apart, and the payment
shall include all wages up to the regular payday. Notwithstanding the
provisions of this section, wages of workers employed by a farm
labor contractor shall be paid on payroll periods at least once every
week on a business day designated in advance by the farm labor
contractor. Payment on such payday shall include all wages earned up
to and including the fourth day before such payday.
205.5. All wages, other than those mentioned in Sections 201 and
202, earned by any agricultural employee, as defined in Section
1140.4, are due and payable twice during each calendar month, on days
designated in advance by the agricultural employer as the regular
paydays. Labor performed between the 1st and the 15th days,
inclusive, of any calendar month shall be paid between the 16th and
the 22nd day of the month during which the labor was performed. Labor
performed between the 16th and the last day, inclusive, of any
calendar month shall be paid between the first and the seventh day of
the following month. Agricultural employees, as used in this
section, shall not include those employees who are covered by Section
205.
206. (a) In case of a dispute over wages, the employer shall pay,
without condition and within the time set by this article, all wages,
or parts thereof, conceded by him to be due, leaving to the employee
all remedies he might otherwise be entitled to as to any balance
claimed.
(b) If, after an investigation and hearing, the Labor Commissioner
has determined the validity of any employee's claim for wages, the
claim is due and payable within 10 days after receipt of notice by
the employer that such wages are due. Any employer having the ability
to pay who willfully fails to pay such wages within 10 days shall,
in addition to any other applicable penalty, pay treble the amount of
any damages accruing to the employee as a direct and foreseeable
consequence of such failure to pay.
206.5. (a) An employer shall not require the execution of a release
of a claim or right on account of wages due, or to become due, or
made as an advance on wages to be earned, unless payment of those
wages has been made. A release required or executed in violation of
the provisions of this section shall be null and void as between the
employer and the employee. Violation of this section by the employer
is a misdemeanor.
(b) For purposes of this section, "execution of a release"
includes requiring an employee, as a condition of being paid, to
execute a statement of the hours he or she worked during a pay period
which the employer knows to be false.
207. Every employer shall keep posted conspicuously at the place of
work, if practicable, or otherwise where it can be seen as employees
come or go to their places of work, or at the office or nearest
agency for payment kept by the employer, a notice specifying the
regular pay days and the time and place of payment, in accordance
with this article.
208. Every employee who is discharged shall be paid at the place of
discharge, and every employee who quits shall be paid at the office
or agency of the employer in the county where the employee has been
performing labor. All payments shall be made in the manner provided
by law.
209. In the event of any strike, the unpaid wages earned by
striking employees shall become due and payable on the next regular
pay day, and the payment or settlement thereof shall include all
amounts due the striking employees without abatement or reduction.
The employer shall return to each striking employee any deposit,
money, or other guaranty required by him from the employee for the
faithful performance of the duties of the employment.
210. (a) In addition to, and entirely independent and apart from,
any other penalty provided in this article, every person who fails to
pay the wages of each employee as provided in Sections 201.3, 204,
204b, 204.1, 204.2, 205, 205.5, and 1197.5, shall be subject to a
civil penalty as follows:
(1) For any initial violation, one hundred dollars ($100) for each
failure to pay each employee.
(2) For each subsequent violation, or any willful or intentional
violation, two hundred dollars ($200) for each failure to pay each
employee, plus 25 percent of the amount unlawfully withheld.
(b) The penalty shall be recovered by the Labor Commissioner as
part of a hearing held to recover unpaid wages and penalties pursuant
to this chapter or in an independent civil action. The action shall
be brought in the name of the people of the State of California and
the Labor Commissioner and the attorneys thereof may proceed and act
for and on behalf of the people in bringing these actions. Twelve and
one-half percent of the penalty recovered shall be paid into a fund
within the Labor and Workforce Development Agency dedicated to
educating employers about state labor laws, and the remainder shall
be paid into the State Treasury to the credit of the General Fund.
211. When action to recover such penalties is brought, no court
costs shall be payable by the state or the division. Any sheriff or
marshal who serves the summons in the action upon any defendant
within his or her jurisdiction shall do so without cost to the
division. The sheriff or marshal shall specify in the return what
costs he or she would ordinarily have been entitled to for such
service, and those costs and the other regular court costs that would
have accrued were the action not on behalf of the state shall be
made a part of any judgment recovered by the plaintiff and shall be
paid out of the first money recovered on the judgment. Several causes
of action for the penalties may be united in the same action without
being separately stated. A demand is a prerequisite to the bringing
of any action under this section or Section 210. The division on
behalf of the state may accept and receipt for any penalties so paid,
with or without suit.
212. (a) No person, or agent or officer thereof, shall issue in
payment of wages due, or to become due, or as an advance on wages to
be earned:
(1) Any order, check, draft, note, memorandum, or other
acknowledgment of indebtedness, unless it is negotiable and payable
in cash, on demand, without discount, at some established place of
business in the state, the name and address of which must appear on
the instrument, and at the time of its issuance and for a reasonable
time thereafter, which must be at least 30 days, the maker or drawer
has sufficient funds in, or credit, arrangement, or understanding
with the drawee for its payment.
(2) Any scrip, coupon, cards, or other thing redeemable, in
merchandise or purporting to be payable or redeemable otherwise than
in money.
(b) Where an instrument mentioned in subdivision (a) is protested
or dishonored, the notice or memorandum of protest or dishonor is
admissible as proof of presentation, nonpayment and protest and is
presumptive evidence of knowledge of insufficiency of funds or credit
with the drawee.
(c) Notwithstanding paragraph (1) of subdivision (a), if the
drawee is a bank, the bank's address need not appear on the
instrument and, in that case, the instrument shall be negotiable and
payable in cash, on demand, without discount, at any place of
business of the drawee chosen by the person entitled to enforce the
instrument.
213. Nothing contained in Section 212 shall:
(a) Prohibit an employer from guaranteeing the payment of bills
incurred by an employee for the necessaries of life or for the tools
and implements used by the employee in the performance of his or her
duties.
(b) Apply to counties, municipal corporations, quasi-municipal
corporations, or school districts.
(c) Apply to students of nonprofit schools, colleges,
universities, and other nonprofit educational institutions.
(d) Prohibit an employer from depositing wages due or to become
due or an advance on wages to be earned in an account in any bank,
savings and loan association, or credit union of the employee's
choice with a place of business located in this state, provided that
the employee has voluntarily authorized that deposit. If an employer
discharges an employee or the employee quits, the employer may pay
the wages earned and unpaid at the time the employee is discharged or
quits by making a deposit authorized pursuant to this subdivision,
provided that the employer complies with the provisions of this
article relating to the payment of wages upon termination or quitting
of employment.
214. Prosecution under section 212 may be brought either at the
place where the alleged illegal order, check, draft, note, memorandum
or other acknowledgment of wage indebtedness is issued or at the
place where it is made payable.
215. Any person, or the agent, manager, superintendent or officer
thereof, who violates any provision of Section 201.3, 204, 204b, 205,
207, 208, 209, or 212 is guilty of a misdemeanor. Any failure to
keep posted any notice required by Section 207 is prima facie
evidence of a violation of these sections.
216. In addition to any other penalty imposed by this article, any
person, or an agent, manager, superintendent, or officer thereof is
guilty of a misdemeanor, who:
(a) Having the ability to pay, willfully refuses to pay wages due
and payable after demand has been made.
(b) Falsely denies the amount or validity thereof, or that the
same is due, with intent to secure for himself, his employer or other
person, any discount upon such indebtedness, or with intent to
annoy, harass, oppress, hinder, delay, or defraud, the person to whom
such indebtedness is due.
217. The Division of Labor Law Enforcement shall inquire diligently
for any violations of this article, and, in cases which it deems
proper, shall institute the actions for the penalties provided for in
this article and shall enforce this article.
218. Nothing in this article shall limit the authority of the
district attorney of any county or prosecuting attorney of any city
to prosecute actions, either civil or criminal, for violations of
this article or to enforce the provisions thereof independently and
without specific direction of the division. Nothing in this article
shall limit the right of any wage claimant to sue directly or through
an assignee for any wages or penalty due him under this article.
218.5. In any action brought for the nonpayment of wages, fringe
benefits, or health and welfare or pension fund contributions, the
court shall award reasonable attorney's fees and costs to the
prevailing party if any party to the action requests attorney's fees
and costs upon the initiation of the action. This section shall not
apply to an action brought by the Labor Commissioner. This section
shall not apply to a surety issuing a bond pursuant to Chapter 9
(commencing with Section 7000) of Division 3 of the Business and
Professions Code or to an action to enforce a mechanics lien brought
under Chapter 2 (commencing with Section 3109) of Title 15 of Part 4
of Division 3 of the Civil Code.
This section does not apply to any action for which attorney's
fees are recoverable under Section 1194.
218.5. In any action brought for the nonpayment of wages, fringe
benefits, or health and welfare or pension fund contributions, the
court shall award reasonable attorney's fees and costs to the
prevailing party if any party to the action requests attorney's fees
and costs upon the initiation of the action. This section shall not
apply to an action brought by the Labor Commissioner. This section
shall not apply to a surety issuing a bond pursuant to Chapter 9
(commencing with Section 7000) of Division 3 of the Business and
Professions Code or to an action to enforce a mechanics lien brought
under Chapter 4 (commencing with Section 8400) of Title 2 of Part 6
of Division 2 of the Civil Code.
This section does not apply to any action for which attorney's
fees are recoverable under Section 1194.
218.6. In any action brought for the nonpayment of wages, the court
shall award interest on all due and unpaid wages at the rate of
interest specified in subdivision (b) of Section 3289 of the Civil
Code, which shall accrue from the date that the wages were due and
payable as provided in Part 1 (commencing with Section 200) of
Division 2.
219. (a) Nothing in this article shall in any way limit or prohibit
the payment of wages at more frequent intervals, or in greater
amounts, or in full when or before due, but no provision of this
article can in any way be contravened or set aside by a private
agreement, whether written, oral, or implied.
(b) The state employer does not violate this section by
authorizing employees who quit, or are discharged from, their
employment with the state to take payment for any unused or
accumulated vacation, annual leave, holiday leave, sick leave to
which the employee is otherwise entitled due to a disability
retirement, or time off to which the employee is entitled by reason
of previous overtime work where compensating time off was given by
the appointing power, as provided in Section 201 or 202.
220. (a) Sections 201.3, 201.5, 201.7, 203.1, 203.5, 204, 204a,
204b, 204c, 204.1, 205, and 205.5 do not apply to the payment of
wages of employees directly employed by the State of California.
Except as provided in subdivision (b), all other employment is
subject to these provisions.
(b) Sections 200 to 211, inclusive, and Sections 215 to 219,
inclusive, do not apply to the payment of wages of employees directly
employed by any county, incorporated city, or town or other
municipal corporation. All other employments are subject to these
provisions.
220.2. Contributions to vacation allowances, pension or retirement
funds, sick leave, and health and welfare benefits on behalf of
persons employed by any county, political subdivision, incorporated
city or town or other municipal corporations may be made in the same
manner and on the same basis as made by private employers.
Payments made by the employing agency to any such fund on behalf
of any employee shall be in lieu of benefits such as vacation
allowance, pension or retirement fund, sick leave, and health and
welfare benefits which are now or may hereafter be granted directly
by the employing agency in accordance with law.
This section shall only apply to nonpermanent laborers, workmen,
and mechanics employed on an hourly or per diem basis.
The employing agency is empowered to determine the equitable
application of this section to insure that the employees receive
benefits comparable to, but not in excess of those provided in
comparable private employment.
The employing agency shall make payments only to plans which meet
the following standards:
1. A plan office is located within the State of California.
2. Any fund connected with the plan is required to be audited at
least annually by an independent, licensed certified public
accountant.
3. Each trustee or administrator of the fund or plan authorized to
receive, handle, deal with or draw upon the assets of the fund or
plan is required to be bonded.
221. It shall be unlawful for any employer to collect or receive
from an employee any part of wages theretofore paid by said employer
to said employee.
222. It shall be unlawful, in case of any wage agreement arrived at
through collective bargaining, either wilfully or unlawfully or with
intent to defraud an employee, a competitor, or any other person, to
withhold from said employee any part of the wage agreed upon.
222.5. No person shall withhold or deduct from the compensation of
any employee, or require any prospective employee or applicant for
employment to pay, any fee for, or cost of, any pre-employment
medical or physical examination taken as a condition of employment,
nor shall any person withhold or deduct from the compensation of any
employee, or require any employee to pay any fee for, or costs of,
medical or physical examinations required by any law or regulation of
federal, state or local governments or agencies thereof.
223. Where any statute or contract requires an employer to maintain
the designated wage scale, it shall be unlawful to secretly pay a
lower wage while purporting to pay the wage designated by statute or
by contract.
224. The provisions of Sections 221, 222 and 223 shall in no way
make it unlawful for an employer to withhold or divert any portion of
an employee's wages when the employer is required or empowered so to
do by state or federal law or when a deduction is expressly
authorized in writing by the employee to cover insurance premiums,
hospital or medical dues, or other deductions not amounting to a
rebate or deduction from the standard wage arrived at by collective
bargaining or pursuant to wage agreement or statute, or when a
deduction to cover health and welfare or pension plan contributions
is expressly authorized by a collective bargaining or wage agreement.
Nothing in this section or any other provision of law shall be
construed as authorizing an employer to withhold or divert any
portion of an employee's wages to pay any tax, fee or charge
prohibited by Section 50026 of the Government Code, whether or not
the employee authorizes such withholding or diversion.
225. The violation of any provision of Sections 221, 222, 222.5, or
223 is a misdemeanor.
225.5. In addition to, and entirely independent and apart from, any
other penalty provided in this article, every person who unlawfully
withholds wages due any employee in violation of Section 212, 216,
221, 222, or 223 shall be subject to a civil penalty as follows:
(a) For any initial violation, one hundred dollars ($100) for each
failure to pay each employee.
(b) For each subsequent violation, or any willful or intentional
violation, two hundred dollars ($200) for each failure to pay each
employee, plus 25 percent of the amount unlawfully withheld.
The penalty shall be recovered by the Labor Commissioner as part
of a hearing held to recover unpaid wages and penalties or in an
independent civil action. The action shall be brought in the name of
the people of the State of California and the Labor Commissioner and
attorneys thereof may proceed and act for and on behalf of the people
in bringing the action. Twelve and one-half percent of the penalty
recovered shall be paid into a fund within the Labor and Workforce
Development Agency dedicated to educating employers about state labor
laws, and the remainder shall be paid into the State Treasury to the
credit of the General Fund.
226. (a) Every employer shall, semimonthly or at the time of each
payment of wages, furnish each of his or her employees, either as a
detachable part of the check, draft, or voucher paying the employee's
wages, or separately when wages are paid by personal check or cash,
an accurate itemized statement in writing showing (1) gross wages
earned, (2) total hours worked by the employee, except for any
employee whose compensation is solely based on a salary and who is
exempt from payment of overtime under subdivision (a) of Section 515
or any applicable order of the Industrial Welfare Commission, (3) the
number of piece-rate units earned and any applicable piece rate if
the employee is paid on a piece-rate basis, (4) all deductions,
provided that all deductions made on written orders of the employee
may be aggregated and shown as one item, (5) net wages earned, (6)
the inclusive dates of the period for which the employee is paid, (7)
the name of the employee and his or her social security number,
except that by January 1, 2008, only the last four digits of his or
her social security number or an employee identification number other
than a social security number may be shown on the itemized
statement, (8) the name and address of the legal entity that is the
employer, and (9) all applicable hourly rates in effect during the
pay period and the corresponding number of hours worked at each
hourly rate by the employee. The deductions made from payments of
wages shall be recorded in ink or other indelible form, properly
dated, showing the month, day, and year, and a copy of the statement
or a record of the deductions shall be kept on file by the employer
for at least three years at the place of employment or at a central
location within the State of California.
(b) An employer that is required by this code or any regulation
adopted pursuant to this code to keep the information required by
subdivision (a) shall afford current and former employees the right
to inspect or copy the records pertaining to that current or former
employee, upon reasonable request to the employer. The employer may
take reasonable steps to assure the identity of a current or former
employee. If the employer provides copies of the records, the actual
cost of reproduction may be charged to the current or former
employee.
(c) An employer who receives a written or oral request to inspect
or copy records pursuant to subdivision (b) pertaining to a current
or former employee shall comply with the request as soon as
practicable, but no later than 21 calendar days from the date of the
request. A violation of this subdivision is an infraction.
Impossibility of performance, not caused by or a result of a
violation of law, shall be an affirmative defense for an employer in
any action alleging a violation of this subdivision. An employer may
designate the person to whom a request under this subdivision will be
made.
(d) This section does not apply to any employer of any person
employed by the owner or occupant of a residential dwelling whose
duties are incidental to the ownership, maintenance, or use of the
dwelling, including the care and supervision of children, or whose
duties are personal and not in the course of the trade, business,
profession, or occupation of the owner or occupant.
(e) An employee suffering injury as a result of a knowing and
intentional failure by an employer to comply with subdivision (a) is
entitled to recover the greater of all actual damages or fifty
dollars ($50) for the initial pay period in which a violation occurs
and one hundred dollars ($100) per employee for each violation in a
subsequent pay period, not exceeding an aggregate penalty of four
thousand dollars ($4,000), and is entitled to an award of costs and
reasonable attorney's fees.
(f) A failure by an employer to permit a current or former
employee to inspect or copy records within the time set forth in
subdivision (c) entitles the current or former employee or the Labor
Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty
from the employer.
(g) An employee may also bring an action for injunctive relief to
ensure compliance with this section, and is entitled to an award of
costs and reasonable attorney's fees.
(h) This section does not apply to the state, to any city, county,
city and county, district, or to any other governmental entity,
except that if the state or a city, county, city and county,
district, or other governmental entity furnishes its employees with a
check, draft, or voucher paying the employee's wages, the state or a
city, county, city and county, district, or other governmental
entity shall, by January 1, 2008, use no more than the last four
digits of the employee's social security number or shall use an
employee identification number other than the social security number
on the itemized statement provided with the check, draft, or voucher.
226.3. Any employer who violates subdivision (a) of Section 226
shall be subject to a civil penalty in the amount of two hundred
fifty dollars ($250) per employee per violation in an initial
citation and one thousand dollars ($1,000) per employee for each
violation in a subsequent citation, for which the employer fails to
provide the employee a wage deduction statement or fails to keep the
records required in subdivision (a) of Section 226. The civil
penalties provided for in this section are in addition to any other
penalty provided by law. In enforcing this section, the Labor
Commissioner shall take into consideration whether the violation was
inadvertent, and in his or her discretion, may decide not to penalize
an employer for a first violation when that violation was due to a
clerical error or inadvertent mistake.
226.4. If, upon inspection or investigation, the Labor Commissioner
determines that an employer is in violation of subdivision (a) of
Section 226, the Labor Commissioner may issue a citation to the
person in violation. The citation may be served personally or by
registered mail in accordance with subdivision (c) of Section 11505
of the Government Code. Each citation shall be in writing and shall
describe the nature of the violation, including reference to the
statutory provision alleged to have been violated.
226.5. (a) If a person desires to contest a citation or the
proposed assessment of a civil penalty therefor, he or she shall
within 15 business days after service of the citation notify the
office of the Labor Commissioner which appears on the citation of his
or her request for an informal hearing. The Labor Commissioner or
his or her deputy or agent shall, within 30 days, hold a hearing at
the conclusion of which the citation or proposed assessment of a
civil penalty shall be affirmed, modified, or dismissed. The decision
of the Labor Commissioner shall consist of a notice of findings,
findings, and order which shall be served on all parties to the
hearing within 15 days after the hearing by regular first-class mail
at the last known address of the party on file with the Labor
Commissioner. Service shall be completed pursuant to Section 1013 of
the Code of Civil Procedure. Any amount found due by the Labor
Commissioner as a result of a hearing shall become due and payable 45
days after notice of the findings and written findings and order
have been mailed to the party assessed. A writ of mandate may be
taken from this finding to the appropriate superior court, as long as
the party agrees to pay any judgment and costs ultimately rendered
by the court against the party for the assessment. The writ shall be
taken within 45 days of service of the notice of findings, findings,
and order thereon.
(b) A person to whom a citation has been issued shall, in lieu of
contesting a citation pursuant to this section, transmit to the
office of the Labor Commissioner designated on the citation the
amount specified for the violation within 15 business days after
issuance of the citation.
(c) When no petition objecting to a citation or the proposed
assessment of a civil penalty is filed, a certified copy of the
citation or proposed civil penalty may be filed by the Labor
Commissioner in the office of the clerk or the superior court in any
county in which the person assessed has or had a place of business.
The clerk, immediately upon the filing, shall enter judgment for the
state against the person assessed in the amount shown on the citation
or proposed assessment of a civil penalty.
(d) When findings and the order thereon are made affirming or
modifying a citation or proposed assessment of a civil penalty after
hearing, a certified copy of these findings and the order entered
thereon may be entered by the Labor Commissioner in the office of the
clerk of the superior court in any county in which the person
assessed has property or in which the person assessed has or had a
place of business. The clerk, immediately upon the filing, shall
enter judgment for the state against the person assessed in the
amount shown on the certified order.
(e) A judgment entered pursuant to this section shall bear the
same rate of interest and shall have the same effect as other
judgments and be given the same preference allowed by the law on
other judgments rendered for claims for taxes. The clerk shall make
no charge for the service provided by this section to be performed by
him or her.
226.6. Any employer who knowingly and intentionally violates the
provisions of Section 226, or any officer, agent, employee,
fiduciary, or other person who has the control, receipt, custody, or
disposal of, or pays, the wages due any employee, and who knowingly
and intentionally participates or aids in the violation of any
provision of Section 226 is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than one thousand dollars
($1,000) or be imprisoned not to exceed one year, or both, at the
discretion of the court. That fine or imprisonment, or both, shall be
in addition to any other penalty provided by law.
226.7. (a) No employer shall require any employee to work during
any meal or rest period mandated by an applicable order of the
Industrial Welfare Commission.
(b) If an employer fails to provide an employee a meal period or
rest period in accordance with an applicable order of the Industrial
Welfare Commission, the employer shall pay the employee one
additional hour of pay at the employee's regular rate of compensation
for each work day that the meal or rest period is not provided.
227. Whenever an employer has agreed with any employee to make
payments to a health or welfare fund, pension fund or vacation plan,
or other similar plan for the benefit of the employees, or a
negotiated industrial promotion fund, or has entered into a
collective bargaining agreement providing for these payments, it
shall be unlawful for that employer willfully or with intent to
defraud to fail to make the payments required by the terms of that
agreement. A violation of any provision of this section where the
amount the employer failed to pay into the fund or funds exceeds five
hundred dollars ($500) shall be punishable by imprisonment in the
state prison, or in a county jail for a period of not more than one
year, by a fine of not more than one thousand dollars ($1,000), or by
both that imprisonment and fine. All other violations shall be
punishable as a misdemeanor.
227.3. Unless otherwise provided by a collective-bargaining
agreement, whenever a contract of employment or employer policy
provides for paid vacations, and an employee is terminated without
having taken off his vested vacation time, all vested vacation shall
be paid to him as wages at his final rate in accordance with such
contract of employment or employer policy respecting eligibility or
time served; provided, however, that an employment contract or
employer policy shall not provide for forfeiture of vested vacation
time upon termination. The Labor Commissioner or a designated
representative, in the resolution of any dispute with regard to
vested vacation time, shall apply the principles of equity and
fairness.
227.5. Whenever an employer has agreed with any employee to make
payments to a health or welfare fund, pension fund or vacation plan,
or such other plan for the benefit of the employee, or has entered
into a collective bargaining agreement providing for such payments,
the employer upon written request of the employee shall furnish such
employee annually a statement indicating whether or not such payments
have been made and for what periods.
228. The payments under Section 227 of this code shall be deemed to
include payments to apprenticeship funds.
This amendment is hereby declared to be merely a clarification of
the original intention of the Legislature and is not a substantive
change.
229. Actions to enforce the provisions of this article for the
collection of due and unpaid wages claimed by an individual may be
maintained without regard to the existence of any private agreement
to arbitrate. This section shall not apply to claims involving any
dispute concerning the interpretation or application of any
collective bargaining agreement containing such an arbitration
agreement.
230. (a) An employer may not discharge or in any manner
discriminate against an employee for taking time off to serve as
required by law on an inquest jury or trial jury, if the employee,
prior to taking the time off, gives reasonable notice to the employer
that he or she is required to serve.
(b) An employer may not discharge or in any manner discriminate or
retaliate against an employee, including, but not limited to, an
employee who is a victim of a crime, for taking time off to appear in
court to comply with a subpoena or other court order as a witness in
any judicial proceeding.
(c) An employer may not discharge or in any manner discriminate or
retaliate against an employee who is a victim of domestic violence
or a victim of sexual assault for taking time off from work to obtain
or attempt to obtain any relief, including, but not limited to, a
temporary restraining order, restraining order, or other injunctive
relief, to help ensure the health, safety, or welfare of the victim
or his or her child.
(d) (1) As a condition of taking time off for a purpose set forth
in subdivision (c), the employee shall give the employer reasonable
advance notice of the employee's intention to take time off, unless
the advance notice is not feasible.
(2) When an unscheduled absence occurs, the employer shall not
take any action against the employee if the employee, within a
reasonable time after the absence, provides a certification to the
employer. Certification shall be sufficient in the form of any of the
following:
(A) A police report indicating that the employee was a victim of
domestic violence or sexual assault.
(B) A court order protecting or separating the employee from the
perpetrator of an act of domestic violence or sexual assault, or
other evidence from the court or prosecuting attorney that the
employee has appeared in court.
(C) Documentation from a medical professional, domestic violence
advocate or advocate for victims of sexual assault, health care
provider, or counselor that the employee was undergoing treatment for
physical or mental injuries or abuse resulting in victimization from
an act of domestic violence or sexual assault.
(3) To the extent allowed by law, the employer shall maintain the
confidentiality of any employee requesting leave under subdivision
(c).
(e) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by his
or her employer because the employee has taken time off for a purpose
set forth in subdivision (a), (b), or (c) shall be entitled to
reinstatement and reimbursement for lost wages and work benefits
caused by the acts of the employer. Any employer who willfully
refuses to rehire, promote, or otherwise restore an employee or
former employee who has been determined to be eligible for rehiring
or promotion by a grievance procedure or hearing authorized by law is
guilty of a misdemeanor.
(f) (1) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by his
or her employer because the employee has exercised his or her rights
as set forth in subdivision (a), (b), or (c) may file a complaint
with the Division of Labor Standards Enforcement of the Department of
Industrial Relations pursuant to Section 98.7.
(2) Notwithstanding any time limitation in Section 98.7, an
employee filing a complaint with the division based upon a violation
of subdivision (c) shall have one year from the date of occurrence of
the violation to file his or her complaint.
(g) An employee may use vacation, personal leave, or compensatory
time off that is otherwise available to the employee under the
applicable terms of employment, unless otherwise provided by a
collective bargaining agreement, for time taken off for a purpose
specified in subdivision (a), (b), or (c). The entitlement of any
employee under this section shall not be diminished by any coll