travel time for nonexempt employees california

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Travel Time Pay Rules in California (2024): The Ultimate Guide

Posted January 31, 2020 by lewislaw & filed under Employment Law Articles .

Last Updated:

• January 18, 2024

A comprehensive guide to travel time pay rules in California —when employees are entitled to be paid for travel time and how to recover those lost wages.

Unpaid travel time can exceed over $100,000 in lost wages, interest and penalties.

Find out how much of your travel time should be paid and how you can recover it.

Article Contents:

Section #1: types of travel time that should be paid, types of travel time that should be paid.

• Time when you actually perform work (i.e. sending email, making phone calls, etc.); OR
• Time when you do not actually perform work (and might even be doing personal things like checking the internet, texting and making personal calls), but when your employer exercises enough control over you that the law considers it working time.

When is an employee considered to be "Performing Work"?

Unlike John, however, Mary is required, on her way to work, to drive to a secure storage facility to pick up the tools she will use for that day. On the way home from work, she is required to return to the storage facility to unload the tools, clean them, and make sure they are locked up for the night. 

Mary is entitled to be compensated for the time spent loading, unloading, and cleaning the tools, as well as for the time she spends traveling between the storage facility and company headquarters. This is because these activities add time and exertion beyond what her normal commute would require. In other words, she is performing actual work for her employer during that time.

When is an employee “subject to control” of the employer?

Many legal cases considering whether an employee should be paid for travel time focus on the issue of whether the employee was “subject to the control” of the employer during the travel time. The key question is what does your employer require you to do?

• Does your employer require you to travel to work in a company vehicle?
• Does your employer require to follow certain when traveling to or returning from work each day?

Examples where the employee should be paid for travel time

• When the employer provides transportation to a jobsite (example: a bus) and requires that employees only use that form of transportation to get to work.
• When the employee has already reported to the worksite at the beginning of a shift and then the employer instructs the employee to travel to other locations.
• When the employee is required to engage in overnight travel (for example, if the employee is required to take an airplane to attend a conference in another state, the employee must be compensated for time traveling, as well as time spent checking bags, going through security screening, etc.).

Examples where the employee is not entitled to be paid for travel time

• When the employee is making the normal commute between home and work.
• When the employer provides transportation to a jobsite (example: a bus or company van) but does not require that employees use of that mode of transportation to arrive at the job.
• When, during required overnight travel, the employee takes time to do personal things like go out to dinner, go sight-seeing, or sleep.

[ return to top ] 

Section #2: When Should You Be Paid For Travel Time?

When should you be paid for travel time.

Travel when overnight stay is required

• Conferences
• Sales meetings
• Continuing education requirements

From the Law:

Travel from one workplace to another in the same day, travel from home to work when there is no fixed workplace, if you are required to report to a work location that is farther away than your normal work location., if you have no fixed job site and are required to travel an unreasonable distance to get to work., travel from home to work in a work vehicle, travel when you work from home (virtual or remote employees).

More than 8 million people now work exclusively from home. In California nearly 6% of workers work from home , a percentage that almost doubles when you look at some locations in the San Francisco Bay and Los Angeles areas.

Section #3: How Much Should You Be Paid for Travel Time?

How much should you be paid for travel time.

You must be paid at least minimum wage or your regular hourly rate for travel time.

Employers can pay a lower hourly rate for travel time..

• Provide you notice prior to the travel time.
• Separately track your travel time.
• Separately list your travel time, including the total hours traveled and your travel time rate on each pay stub.

Section #4: How to Calculate Your Travel Time Pay

How to calculate your travel time pay.

Calculating your travel time pay

How to calculate overtime (based on travel hours), reimbursement for travel expenses (mileage), section #5: how to recover your travel time pay, how to recover your travel time pay.

There are strict time limits for recovering your unpaid travel time

Recovering travel time pay while you are still working at the company.

• Discrimination
• Retaliation
• Firing/Termination
• Reduction in Pay
• Reassignment of Position
• Other Adverse Employment Actions

Recovering travel time pay if you do not want to file a lawsuit

Section #6: choosing the right attorney, choosing the right attorney.

Questions You Can Use to Interview Attorneys

• Do you practice employment law?
• What is your level of experience dealing with travel time cases?
• Have you had favorable outcomes? (Most attorneys will be able to answer this question. But they might not be able to tell you how much they have won in these types of cases if there is a confidentiality agreement in place. Attorneys are obligated to keep confidential settlements confidential.)
• What do you think is the best strategy for handling my case keeping in mind my goals? (tell the attorney about your goals for resolving the case)
• How long will it take to resolve my case?
• What is your fee structure?
• What does your fee include and exclude?

After speaking with the attorney, consider the following questions:

• Was the attorney responsive?
• Did the attorney answer your questions?
• Did the attorney inspire confidence in you that he or she knew the subject matter?
• Is the attorney someone you feel you can trust?

Section #7: Hire an Experienced Travel Time Pay Attorney

Hire an experienced travel time pay attorney.

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“Travel Time” in California – 5 Key Things to Know

Posted on September 26, 2023

In California, travel time is when your employer requires you to be at a designated place and controls how you get there . Because of this control, travel time is compensable in California. It often occurs when your employer makes you go from one worksite to another , or use the employer’s transportation from a designated meet-up spot.

Five key things to know about travel time are:

• it does not cover your normal commute ,
• it has to be at least the minimum wage ,
• it can result in overtime pay ,
• California laws are more generous to workers than federal law, and
• you may also get mileage reimbursement .

1. Travel time does not cover your normal commute

Under California law, your “ hours worked ” are those that your employer either:

• suffered or permitted you to work, or
• subjected you to the employer’s control. [1]

California courts have ruled that this does not cover your normal commute to and from your work location. You can choose how to commute and can do purely personal pursuits on the way to or from the job site. Therefore, there is insufficient control exerted by your employer to make it compensable time. [2]

However, there are some circumstances where your employer exerts enough control to change your commute time and entitle you to employee travel time.

For example : Raymond is a farm worker. His employer requires him to drive to a parking lot and then to take the employer’s bus to the work site. The portion of Raymond’s commute in the bus is compensable travel time because he is under the control of the employer. [3]

2. Travel time pay has to be at least the minimum wage

California labor law requires all of your hours worked to be compensated with at least the minimum wage . This includes your travel time .

If your employment agreement does not specify your travel time pay, then it must be paid at your regular rate of pay . However, many employers specify a lesser hourly rate for travel time. So long as this different rate is at or above the minimum wage, it is allowed.

3. It can add work hours and entitle you to overtime pay

If you are a nonexempt worker , the hours you work in travel time can put you over the daily or weekly limit and entitle you to overtime pay .

California’s wage and hour laws protect nonexempt employees. They are entitled to:

• meal periods and rest breaks , and
• overtime pay.

That overtime pay is one-and-a-half, or 1.5, times your regular rate of pay . You get this higher rate of pay for every hour you work in excess of:

• 8 hours in a workday,
• 40 hours in a workweek , or
• 6 consecutive days in the workweek. [4]

You can also be entitled to double-time pay , or twice your regular rate of pay , for hours worked more than :

• 12 hours in a single workday, or
• 8 hours on the 7th consecutive day of a workweek. [5]

Because travel time is “hours worked,” it can push you over these limits and entitle you to the applicable overtime rate. Many workers do not realize how easily travel time can add to the number of their regular work hours.

4. California law is more generous than federal employment law

California employment law is more generous than federal law regarding travel time. Regulations for the federal Fair Labor Standards Act (FLSA) define “ work time ” as when you are “ suffered or permitted ” to work. [6] The extent of your employer’s control over you is not a factor under federal law.

This means that circumstances where your employer is controlling you but you cannot work would not be compensable under federal law. This makes it less likely that you would be entitled to travel pay under federal law.

5. Work-related travel can also entitle you to a mileage reimbursement

If you use  your own transportation or personal vehicle during travel time, you may also be entitled to mileage reimbursement in California.

State law requires California employers to cover their employee’s expenses during employer-required travel. [7] This includes reimbursing you for your:

• gasoline costs,
• vehicle depreciation from normal wear and tear,
• car maintenance and repair costs,
• fees for vehicle registration, and
• auto insurance.

Your employer must have a valid means or method of determining the amount of these reimbursements. [8] Many companies use the Internal Revenue Service’s (IRS) reimbursement rates for travel expenses.

What can I do if my employer is not paying me travel time pay?

If your employer is not paying you for your travel time, you can file a wage and hour claim . This can recover your unpaid wages, plus interest and attorney’s fees and court costs. It can be filed as a lawsuit or as a claim with the Labor Commissioner at the California Division of Labor Standards Enforcement (DLSE).

Legal References:

[1] 8 California Code of Regulations (CCR) 11040(2)(K) (also known as the Industrial Welfare Commission (IWC) Wage Order No. 4-2001 ).

[2] Morillion v. Royal Packing Co. , 22 Cal.4th 575 (2000) .

[4] California Labor Code 510 LAB.

[6] 29 CFR 785.11.

[7] California Labor Code 2802 LAB.

[8] Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal.4th 554 (2007) .

About the Author

Neil shouse.

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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Travel Time in California: A Must-Know Guide for Employers

Take control of California’s time, overtime, and break laws using Timeero.

Understanding travel time pay in California is essential for employers. It involves complex rules and regulations that affect how you compensate your employees, manage your operations, and protect your bottom line. Get it wrong, and you risk costly lawsuits and unhappy employees, not to mention inefficient practices that will eat into your profit.

So, let’s get it clear from the get-go: Is travel time paid in California?

A short answer is yes, but you should know that not all travel counts. 

To avoid the pitfalls of failing to comply with legal requirements, you should familiarize yourself with the ins and outs of travel time pay and mileage reimbursement in California.

Our guide is here to explain the concept of travel time pay, how it differs from regular pay, and what California state law stipulates. 

We’ll also provide some practical tips on calculating California travel time pay and mileage reimbursement accurately and fairly.

Overview of California Labor Laws Related to Travel Time

When enforcing travel time pay, the California Division of Labor Standards Enforcement (DLSE) pays a lot of attention to detail. 

The DLSE guidelines specify when you must compensate your employees for travel time, whether running a local errand or going on an out-of-state business trip. 

Remember that if you overlook these directives, you can risk your company financially and reputationally. Ignoring DLSE’s well-outlined norms can open you up to legal complications, including penalties that could negatively impact your bottom line. 

So, what are the rules you need to follow?

What Constitutes “Hours Worked” in California

In California employment law, “hours worked” is crucial in defining compensable time, including travel time. It includes:

• Time actively spent performing work-related tasks , such as sending emails, making phone calls, or visiting clients.
• The time when employees aren’t directly involved in work but remain under sufficient control of the employer , to the extent that the law considers it is working time. This usually means they’re not free to follow purely personal pursuits during that time.

Specific Rules Governing California Travel Time Pay

• Using employer’s vehicle. The time spent traveling is compensable if an employee has to use the company vehicle for work purposes.
• Carrying employer tools. If an employee transports tools or equipment for their employer, adding time and effort beyond the usual commute, that extra time must be paid.
• Alternate worksite reporting. If an employer requires an employee to travel to a different job site on a short-term basis, which involves more than a minor distance, this travel time must be compensated.
• Special circumstances. Activities like education and training time may also count as “working hours” under certain conditions.
• Special rates. If an employer decides to pay a special rate for travel time, they must establish and inform employees about this rate in advance.
• Advance notice and minimum wage. Employees must be informed of the travel rate in advance, and this rate cannot fall below the minimum wage.

When Does Travel Time Require Pay in California?

To better explain the issue, let’s discuss a couple of examples in which employees are entitled to travel time pay under California law: 

• If your employees are making trips during work hours for business-related tasks — for instance, shuttling between different office locations or running errands for supplies, those hours are generally compensable.
• You must reimburse the travel time when an employee travels out of town for a business event and returns the same workday. However, note that the usual commute time to the regular workplace and back to the employee’s home can be excluded from this calculation.
• If employees are required to stay overnight for business purposes, the rules become more complex. Generally speaking, the time spent traveling during regular working hours is compensable. However, the same doesn’t apply to the time at the destination unless it’s spent working. 
• If travel is a central part of the employee’s job (think sales representatives or delivery drivers), almost all the time spent traveling during work hours is compensable, including wait time at airports or other transit hubs.
• Mandatory attendance at training sessions or conferences also requires compensation for travel time. If the event is outside of regular work hours, but attendance is compulsory, you must also reimburse your employees for travel time.

For example, if Sarah, a sales rep, has to drive from her regular work location to a client’s office in the middle of the day, that time is compensable. If she’s flying out for a multi-day conference, the time spent in transit could be considered work hours, depending on various factors. The rules around this scenario might differ and involve considerations such as meals and lodging.

Differentiating Between the Everyday Commute and Compensable Travel Time 

Understanding the fine line between commute time and work-related travel is critical to avoiding legal complications.

Your employees’ normal commute to and from the regular worksite is generally off your tab. In other words, you’re not required to reimburse your employees for the time they spend commuting between their homes and their regular worksites.     

However, certain situations turn the usual commute into compensable work time.

• Employer-provided transportation. If an employee must come to a determined place and use the employer’s transportation to and from the worksite, that travel time is compensable under California law.
• Restrictions on personal transportation. If employees aren’t allowed to use their own transportation and must use the employer’s, then the time is also considered work time that must be compensated.

The Morillion v. Royal Packing Co. case is crucial for understanding the travel time pay in California. The court held that the employees who had to travel on the employer-provided buses were entitled to compensation for their travel time since they were subject to the employer’s control and could not use that time for their own purposes. This case has important implications for defining what constitutes compensable work hours under the law.

Travel Time Pay and Mileage Reimbursement in California

If an employee’s job description requires using their personal vehicle for work-related activities, according to the California Labor Code Section 2802 , employers have to reimburse them. This is not just for fuel expenses but also includes factors like vehicle wear and tear.

Moreover, the right to mileage reimbursement is non-waivable. So, what does this mean for you? 

Simply put, even if your employment contract states that employees waive their rights to mileage reimbursement, this provision is void in a court of law.

Although many employers rely on the IRS standard mileage rate for calculating reimbursements, it’s important to note that this is not a one-size-fits-all solution. 

If an employee can prove that their actual expenses have exceeded this rate, you must cover the difference.

The risks of not abiding by these rules are far from trivial. Failure to adequately reimburse employees can result in wage and hour lawsuits, a situation no employer wants to find themselves in. 

A reliable mileage tracking solution , such as Timeero, can help you accurately track and adequately reimburse your employees for business mileage.

Legal Must-Dos and Best Practices for California Employers

To that end, let’s explore legal must-dos and best practices that can serve as your guiding compass.

Advanced time and mileage tracking

To stay compliant with California labor laws , consider using one of the best employee GPS time and mileage tracking software designed with precision in mind. Such a tool won’t only automate what could be an error-prone manual process but also provide airtight records should any legal problems arise. Trust us, robust software is a worthwhile investment.

Up-to-date policies

Your employee handbook isn’t just a document; it’s your legal shield. Make sure it’s always updated with the latest company travel policy and mileage reimbursement policy . 

This will keep your team informed and serve as your first line of defense in case of disputes or inquiries.

Regular audits

You shouldn’t wait to find yourself in legal trouble to examine your processes. Regular audits can serve as a preventative measure, offering a clear insight into any discrepancies that could snowball into serious legal issues. Think of it as your business health check-up.

Expert consultation

Regulatory changes sometimes happen without much notice. When in doubt, don’t hesitate to consult legal experts who specialize in California labor law . Remember, preemptive legal advice is often much more affordable than dealing with potential litigation or lawsuits.

How Can Timeero Help Employers Stay Compliant With California Travel Time?

Compliance with California’s travel time regulations is easier than you think, thanks to Timeero. 

Our comprehensive software offers a range of features designed to keep you in line with 

California state laws effortlessly.

Time Tracking

The crucial concept in California travel time pay is the concept of “hours worked.” Any compliance with the law must start there.

Timeero offers precise time-tracking functionalities that comply with California laws, capturing details of your employees’ work hours to ensure fair compensation.

All your employees need to do is download a mobile app on their phones and clock in when their workday begins. The app will keep track of all their work-related activities and automatically create time cards with the clock in and out time and the total number of hours worked. 

As the app tracks time during working hours only, the hours worked will also include employee travel time. 

Timeero software comes with an option to set a different hourly rate for the jobs you create, giving you flexibility around the travel time rate.

Mileage Tracking

But Timeero’s usability for compensating your workers’ travel expenses doesn’t end there. 

When employees use their own vehicles for work-related tasks, accurate mileage tracking is essential for reimbursement, in line with California Labor Code Section 2802. Timeero facilitates this with its powerful tracking features.

When it recognizes driving, the Timeero mobile app automatically starts tracking employees’ mileage and routes, capturing precise data for accurate reimbursement.

You can also use the app to replay employees’ routes and compare their actual routes with the shortest routes to their destinations.

Segmented Tracking

To provide a clearer view of how employee time is spent during work hours, Timeero offers segmented tracking capabilities. This visual timeline and data gathered can be especially useful in the context of California’s nuanced labor laws around travel time.

Segmented tracking will give you a quick overview of your employee’s travel time vs. time spent on site. If there are any potential issues when it comes to excessive travel time or mileage, you will be able to spot them right away.

California Overtime Settings

Timeero includes settings specifically designed for tracking California-specific overtime and double-time hours , helping you maintain compliance with state labor laws.

You can choose the California Overtime Rules feature in the company settings, set the overtime rate, and have the exact payroll data ready when the next paycheck is due.

California Breaks

During their working hours, non-exempt employees in California are mandated to use their breaks. Not providing them with breaks leads to premium pay and potential legal and financial penalties.

Timeero includes a California Breaks Tracker feature that helps you ensure compliance with California meal and rest break laws , further reducing the risk of labor law violations.

With this feature, your California workers must complete the Daily Sign-off form before clocking out from their shifts. This way, they will verify whether they’ve used their breaks in a way that is compliant with California breaks law. Timeero will also automatically alert you if there is a compliance issue.

Disclaimer: California laws are complex, so this article serves informational purposes only. Consult your legal team for personalized advice.

FAQ: Travel Time in California

Is it a law in california that you must be paid for travel time.

Yes, it’s a legal requirement. Failure to comply with the California Labor Code and DLSE guidelines on travel time pay can result in legal actions, including penalties and back pay.

How Many Hours Per Day Is Travel Time in California?

There’s no hard and fast rule for a “per day” cap on travel time. However, what counts as compensable hours varies based on travel, whether a special one-day assignment or an overnight trip. An accurate time-tracking tool is your best friend here.

How Much is Travel Pay in California?

In California, the rate for travel time pay is typically calculated at the employee’s regular rate of pay. But, in some cases, both sides may agree to a different rate for travel time before the travel takes place. The rate must be at least the minimum wage.

With Timeero, mastering California’s time, overtime, and break laws is a breeze.

Need more information on this topic.

• 6 Things You Need to Know About Travel Time Pay in California

Your employer told you to drive to a store in Los Angeles to buy some donuts during normal work hours. Are you going to get paid for that trip, and why? Today, we brought our Los Angeles employment law attorney Jeffrey Rager to spell out what is travel time pay, when you are eligible to receive it, how it is calculated, and whether travel time always equals business time.

Travel time vs commuting time: what is the difference?

But before we delve into the topic, let’s make sure that you understand the difference between commuting time and travel time. The former refers to an employee’s personal time spent to commute back and forth from work to home, while travel time is time spent traveling by an employee for work-related activities.

Under California employment laws, travel time should be paid, and can be either local trips or travel away from home.

Are you eligible for travel time pay?

You are eligible to receive pay for local travel time only if you are a non-exempt employee (meaning: you are employed on an hourly basis). Exempt employees, who are paid based on their performance and expertise, are not entitled to travel time pay.

For non-exempt employees, travel time – as well as education and training time – are classified as “working hours,” which means their employers are legally required to pay them for it.

For example, let’s get back to the situation we have mentioned in the very beginning. If you are asked by your employer or supervisor to drive to a store to pick up some items during normal work hours, you should be paid for your travel time.

Time spent traveling away from home

An employer in Los Angeles and elsewhere in California is required to compensate his employees for any time spent traveling away from home. Let’s say, for example, that your employer directs you to attend a two-day event in New York City. Since you will have to spend time traveling from Los Angeles to New York City, your employer should pay travel time.

Our Los Angeles wrongful termination lawyer at Rager & Yoon – Employment Lawyers explains that California employers are typically required to compensate their employee for spending any time that is under the employer’s control.

How to calculate travel time pay?

Calculating travel time pay for salaried employees, who get paid bi-weekly or monthly, is not a problem, since they get paid regardless of the number of hours worked.

Hourly employees, meanwhile, should be paid on an hourly basis, which means travel time may not be as easy to calculate. It is highly advised to speak to an employment law attorney to find out whether or not travel time pay was calculated properly in your particular situation.

Is one-day or overnight stay paid?

If you have not been for a one-day or overnight stay, seek immediately legal advice of a lawyer. While hourly employees in Los Angeles and elsewhere in California are generally required to receive travel time pay in these situations, there are certain exceptions. That is why you should speak to an attorney to learn more.

Should your employer compensate for travel expenses?

Definitely. Travel time itself is not the only thing that an employer pays for. Travel expenses should be compensated by your employer, as employees can generally deduct unreimbursed travel expenses. In case you are traveling for both work-related activities and personal travel, you will have to keep separate checks for business-related expenses.

Calculating travel time pay and understanding employment laws is not the easiest task. That is why you are highly advised to get a free consultation from an experienced Los Angeles employment law attorney to determine whether or not your travel time pay is fair, or how to take legal action against an employer who does not pay for travel expenses.

Contact Rager & Yoon – Employment Lawyers for a free case evaluation. Call our Los Angeles offices at 310-527-6994 or fill out this contact form today.

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On the road again: Compensating work-related travel

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After limiting work-related travel due to the pandemic, many employers are sending their employees to out-of-town sales meetings, conferences, and trainings. Here are the rules of the road for compensating California employees for work-related travel.

Non-exempt employees must be compensated for employer-mandated travel time

Employees exempt from overtime rules, such as executives, professionals, and high-level administrators, are paid a set salary of at least twice the state hourly minimum wage to perform their duties, however long it takes. They are not entitled to extra compensation for traveling on business.

Under the governing state wage orders, non-exempt employees, whether paid by the hour or by salary, are entitled to be paid for all “hours worked,” including “the time during which an employee is subject to the control of an employer. ...” That includes time spent on employer-mandated travel.

DLSE guidance on compensating work-related travel

In 2002, the California Division of Labor Standards Enforcement (DLSE) issued opinion letter 2002.02.21 , whose guidance was later incorporated into the agency’s enforcement manual, reviewing the legality of an employer policy that provided that “Time spent traveling as a passenger on a plane, train, bus, car, or taxicab to a business destination outside [an employee’s] normal business hours is not considered to be paid time.” The DLSE concluded the policy violated California law, even if it might pass partial muster under the less demanding federal wage rules.

“Under state law, if an employer requires an employee to attend an out-of-town business meeting, training session, or any other event, the employer cannot disclaim an obligation to pay for the employee’s time in getting to and from the location of that event. Time spent driving, or as a passenger on an airplane, train, bus, taxi cab or car, or other mode of transport, in traveling to and from this out-of-town event, and time spent waiting to purchase a ticket, check baggage, or get on board, is, under such circumstances, time spent carrying out the employer’s directives, and thus, can only be characterized as time in which the employee is subject to the employer’s control. Such compelled travel time therefore constitutes compensable ‘hours worked.’”

According to the DLSE, that does not mean every hour an employee spends away on employer-required travel is compensable. “[T]ime spent taking a break from travel in order to eat a meal, sleep, or engage in purely personal pursuits not connected with traveling or making necessary travel connections (such as, for example, spending an extra day in a city before the start or following the conclusion of a conference in order to sightsee), is not compensable.”

Employer may establish lower rate of compensation for travel before it occurs

The DLSE allows an employer, by policy or contract, to “establish a separate rate for travel before the work is performed, provided that no rate of pay can fall below the state minimum wage. Under state law, the obligation to pay no less than the minimum wage attaches to each separate hour, or part of each hour worked.”

All employees must be reimbursed for reasonably necessary work-related travel expenses

California Labor Code section 2802 requires an employer to reimburse exempt and non-exempt employees alike for all necessary expenses incurred in connection with employer-required travel.

Employers often reimburse employees who drive out-of-town for business at the mileage rate set by the U.S. Internal Revenue Service rather than for all expenses the employee actually incurs in driving. In June, the IRS announced an unusual mid-year increase in the business-related mileage reimbursement rate from 58.5 cents to 62.5 cents effective July 1 through the end of the year to reflect the recent increase in fuel prices.

Limits on employer duty to pay work-related travel costs

Non-exempt employees must be paid for business travel that an employer requires , not business travel that an employee elects to take, such as for an enrichment seminar the employee chooses to take to make himself or herself a better employee. And an employer must reimburse “necessary” travel-related expenses, not discretionary extras like seat or room upgrades. Along with the ability to set a lower compensation rate in advance for hours spent traveling for business, these limits give employers some control over their travel budgets.

Dan Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at [email protected] . His Twitter handle is @DanEatonlaw

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California Workplace & Employment Law Blog

Travel time pay is required for nonexempt employees.

By Kevin Rivera on April 16, 2019

Many California employers are not aware that they are required to pay nonexempt (meaning “hourly”) employees for time traveling to, and attending, work-related functions such as conferences, seminars, and trainings. Although travel time from home to work and back is usually not compensable, most other travel time that is required for work is considered work time that must be paid. For example, if you require nonexempt employees to attend a conference away from their typical work place, you must pay them for the travel time to and from the conference, minus the time of their usual commute.

If air travel is required, you must pay them (subtracting their usual commute time) from the time they leave their house until they reach their destination, or until they no longer perform work (for example, when they have checked into the hotel). This means you must pay them for their time traveling to the airport, waiting at the airport, and the time they spend on the plane. If they are free to do what they choose — sightsee, meet with friends, etc. — your obligation to pay ends. If they go straight to the conference, you continue to pay.

Because traveling does not require the employee to employ his or her skills, pay for travel time can be at a rate of pay less than the employee’s normal rate of pay. You can pay the employee as little as the minimum wage for travel pay. Travel time is counted as work time and therefore overtime pay rules apply. Nonexempt employees must keep an accurate record of their time when traveling to make sure overtime is properly calculated. Nonexempt employees must also take meal and rest breaks when traveling, and should document their meal break times as well.

If you will pay travel time at a rate that is less than the employee’s normal hourly rate, you should state this in writing to all affected employees in advance of the travel.

A real world example

Suppose an employee lives and works in Santa Monica, and her normal commute to the office is just 10 minutes. Now suppose she works eight hours at her regular work place in Santa Monica, and then travels to LAX for a flight to Oakland. The employee then stays at a hotel in Oakland. The next day, she works seven hours manning the employer’s booth at a conference before heading back to the Oakland airport for her flight to LAX, and then returns home to Santa Monica.

Under these circumstances, the employee must receive her normal rate of pay for the first eight-hour period in Santa Monica. Travel pay begins when she leaves the work place to go to the airport, minus the amount of her regular 10-minute commute. Her travel pay ends when she arrives at the hotel in Oakland. The employee receives her normal seven hours of pay while at the conference in Oakland. When the employee leaves the conference for the Oakland airport, travel pay begins. It ends when she arrives back at her home in Santa Monica, minus the usual 10 minutes of her normal commute.

These rules do not apply to exempt employees

The above rules apply to travel pay for nonexempt (hourly) employees, and not to exempt employees who earn a salary. Exempt employees may be required to work long hours and have to travel for work without any additional compensation.

Different rules might apply when traveling outside of California

If your employee is traveling out of California, it is possible that the laws of the state where he or she is traveling to might apply. This is important because nearly every state in the country has more lax labor laws than California, in which case you may not need to pay for time spent traveling in that state. However, whether or not the laws of another state will apply is dependent on a variety of factors. When in doubt, consult with knowledgeable employment law counsel.

In addition to paying for time spent traveling, remember that employers must reimburse employees for expenses incurred as part of their job, such as mileage, hotel costs, and meals—whether they are exempt or nonexempt.

Employer Action Items:

• Accurate record keeping is crucial when calculating travel pay. Make sure that your nonexempt employees keep track of all their time traveling –when travel time starts and ends, and when their normal work duties begin and end. They should also track the start and end times of meal breaks. When employees travel to a different time zone, it is a best practice to require them to track all hours based on California time to avoid payroll errors.

• Communicate with nonexempt employees about travel pay obligations. If you will pay a different rate for travel time, this must be communicated in advance prior to the travel. It is a best practice to have a written travel time policy that you distribute to your employees.

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Exempt vs. non-exempt employees: guide to california law.

Certain employees are “nonexempt” under California law. They have many rights that “exempt” employees do not.

California labor laws require most employers to follow certain rules⁠—⁠like paying overtime, tracking hours, or providing rest breaks. Some types of jobs, however, are exempt from these requirements. An exempt employee is someone whose job is not subject to one or more sets of wage and hour laws.

In most cases, there are three simple requirements to determine whether a worker is an exempt employee under California law:

• Minimum Salary. The employee must be paid a salary that is at least twice the state minimum wage for full-time employment.⁠ 1
• White Collar Duties. The employee’s primary duties must consist of administrative, executive, or professional tasks.⁠ 2
• Independent Judgment. The employee’s job duties must involve the use of discretion and independent judgment.⁠ 3

If all three requirements are met, the employee will usually be classified as “exempt” from overtime, minimum wage, and rest break requirements (but not meal break requirements). There are, however, many caveats to this test.

There are also some jobs that are subject to a different test altogether. And some employees are only partially exempt; meaning, they are protected by certain labor laws, but not others.

The rest of this article explains these requirements in greater detail, as well as what happens when employers fail to property classify their employees under California Law.

The Rights of Nonexempt Employees ☍ Click to Copy a Link to This Chapter

The Rights of Nonexempt Employees

Minimum Wage Rights

Federal law requires employers to pay nonexempt employees a minimum wage of $7.25 per hour.⁠ 4 Fortunately, California state law is more favorable to employees than in this context.

As of January 1, 2023, California law requires nonexempt employees that work for an employer with 25 or fewer employees to be paid a minimum of $15.50 per hour .⁠ 5 Employees that work for an employer with more than 25 employees are entitled to be paid $15.50 per hour .⁠ 6

Certain cities and counties have established a minimum wage higher than the statewide minimum wage.

Overtime Rights

Federal law requires employers to pay nonexempt employees an overtime rate of at least one-and-one-half times their regular hourly wage for each hour worked in excess of 40 during a workweek.⁠ 7

Again, California law protects nonexempt employees to a greater degree than federal law.⁠ 8

California’s overtime law requires employers to pay nonexempt employees one-and-a-half times their regular hourly rate of pay for:

• All hours worked in excess of 8 in a single workday,
• All hours worked in excess of 40 in a single workweek, and
• The first 8 hours worked on the seventh consecutive day of work in the workweek.⁠ 9

California employers are required to pay nonexempt employees twice their regular hourly rate of pay for:

• All hours worked in excess of 12 in a single workday, and
• All hours worked in excess of 8 on the seventh consecutive day of work in the workweek.⁠ 10

Meal Break Rights

Most employees in California (including most exempt employees) are entitled to an unpaid, 30-minute meal break if they work more than 5 hours in a day.⁠ 11 A second meal break is required if employees work more than 10 hours in a day.⁠ 12

Employees can agree to waive the first meal break if they do not work more than 6 hours in a day.⁠ 13 They can agree to waive the second meal break if they do not work more than 12 hours in a day, and the first meal break was not waived.⁠ 14

During the meal break, the employee must be relieved of all responsibility and be free to leave the work premises. If the employee is required to remain on the employer’s premises or job site, the employee must be paid for the meal break.⁠ 15

When employers fail to provide an employee a meal break, they are required to pay the employee an extra one hour of pay at the employee’s regular hourly rate. The employee may only earn one extra hour per workday for their employer’s failure to provide them with missed meal breaks.⁠ 16

There are some types of exemptions that apply to meal breaks.⁠ 17 But the main exemptions discussed in this article (namely, those that apply to executive, administrative, and professional employees) do not apply to meal breaks.⁠ 18

Rest Break Rights

Nonexempt employees in California are also entitled to take a paid 10-minute rest period during the middle of each 4-hour work period.⁠ 19

Employees are not entitled to a rest period if they work less than 3.5 hours in the work day.⁠ 20

When employers fail to provide an employee a rest period, they are required to pay the employee an extra one hour of pay at the employee’s regular hourly rate. The employee may only earn one extra hour per workday for their employer’s failure to provide them with missed rest period.⁠ 21

Employers must also provide reasonable breaks must also be provided to lactating mothers who want to express breast milk for their children.⁠ 22

Lactation breaks must be paid if they are taken during the employee’s regular rest period. They do not need not be paid to the extent that they last longer than, or are in addition to, the regular rest period.⁠ 23

Determining Whether an Employee is Exempt ☍ Click to Copy a Link to This Chapter

Determining Whether an Employee is Exempt

Certain employees are exempt from California and federal laws governing minimum wage, overtime, work hours, and rest periods.⁠ 24

As mentioned above, there are usually three simple requirements to determine whether a worker is an exempt employee under California law:

• Minimum Salary. The employee must be paid a salary that is at least twice the state minimum wage for full-time employment.⁠ 25
• White Collar Duties. The employee’s primary duties must consist of administrative, executive, or professional tasks.⁠ 26
• Independent Judgment. The employee’s job duties must involve the use of discretion and independent judgment.⁠ 27

In addition to this three-part test, there are several types of exemptions that apply to specific jobs. The most common job-specific exemptions apply to:

• Commissioned employees,
• Physicians and surgeons,
• Computer professionals,
• Private school teachers,
• Outside salespersons,
• Truck drivers, and
• Union employees.

These job-specific exemptions have their own tests (distinct from the three-part test mentioned above). And some of them are only partially-exempt. Each job-specific exemption is discussed in their own section below.

Importantly, employers are only entitled to claim an exemption when an employee “plainly and unmistakably” meets the standard required for the exemption.⁠ 28 When doubt exists, the law generally requires the employee to be classified as nonexempt.

The Salary Requirement ☍ Click to Copy a Link to This Chapter

The Salary Requirement

In general, an employee is only exempt if they are paid on a salary basis (rather than an hourly wage).⁠ 29 The salary must be at least at least twice the state minimum wage for full-time employment.⁠ 30

“Salary” Defined

A salary , for these purposes, is an unvarying minimum amount of pay.⁠ 31 The employee’s pay must be predetermined, and cannot change based on the number of hours worked or the quality of the work performed.⁠ 32

Courts have suggested that employers can deduct from an employee’s pay for full-day absences and still consider the employee to be paid on a salary basis.⁠ 33 But the employee would no longer be considered “salaried” if the employer deducted for partial-day absences.⁠ 34

If the employee’s pay is based on the number of hours worked with no minimum guarantee, the employee will be treated as being an hourly employee (an thus nonexempt).⁠ 35

Calculating the Minimum Salary

As mentioned above, California law requires exempt employees to be paid a monthly salary of at least twice the state minimum wage for full-time employment to qualify as exempt. For these purposes, full-time employment is considered 40 hours per week.⁠ 36

In 2023, employees are entitled to a minimum wage of $15.50 per hour.⁠ 37 To meet the minimum salary requirement for exempt employees, the applicable minimum wage must be multiple by two, and then multiplied by 40 hours per week. That gives us a weekly salary that is twice the minimum wage.

This means that the minimum salary for exempt employees in 2023 is $5,373‬.34 per month (or $64,480.00 annually). These numbers are calculated by doubling the applicable minimum wage, multiplying that amount by 40 hours per week, the result of which is then multiplied by 52 weeks and divided by 12 months. This calculation gives us a monthly salary that is equal to twice the state minimum wage for full-time employment.⁠ 38

Importantly, California’s minimum wage is set to increase every year on January 1 st . This means that the minimum salary for exempt employees in California will also be increasing annually as follows:

For more information about California’s minimum wage, please read our article: Guide to California’s Minimum Wage Laws in 2023 and Beyond .

The White Collar Duties Requirement ☍ Click to Copy a Link to This Chapter

The White Collar Duties Requirement

If the salary requirements are met, the next question is whether the employee is employed in an administrative, executive, or professional capacity.⁠ 39 This is sometimes called the “white collar duties” test.

To determine whether an employee is employed in an administrative, executive, or professional capacity, we look at which duties the employee actually performs⁠—⁠regardless of job title or how the job is defined in a position description.⁠ 40

Importantly, the white collar duties test focuses on the employee’s primary duties. California law requires an employee to devote more than half of his or her working hours to the primary duty in order to satisfy this test.⁠ 41

An employee who meets this test will be exempt from several rights, including:

• The right to 10-minute rest periods,
• The right to overtime compensation, and
• The right to a minimum wage (provided, of course, that they met the minimum salary requirement).⁠ 42

It is therefore important to carefully determine whether an employee meets all requirements of the test.

Administrative Employees

An employee is considered employed in an administrative capacity if their primary duty is office or nonmanual work directly related to management or general business operations.⁠ 43

Work relates to management or general business operations when the employee assists in running the business.⁠ 44

Secretaries, store clerks, bookkeepers, and lead operators on production lines cannot be classified as administrative employees because they do not help run the business.

Examples of duties that relate to management or general business operations include responsibility for marketing, research, budgeting, finance, accounting, purchasing, quality control, human resources, labor or government relations, regulatory compliance, and database administration.⁠ 45

Executive Employees

An employee is considered employed in an executive capacity when:

• Their primary duty is the management of a business or one of its departments;
• They regularly direct the work of two or more other employees; and
• They have the authority to hire and fire employees, or to make recommendations about hiring, firing, promotions, and wages that are given particular weight.⁠ 46

Management includes such activities as hiring, firing, training, supervising, and disciplining employees; making work assignments; resolving employee grievances; maintaining production or sales records; ordering materials or inventory; and planning a budget.⁠ 47

Executive employees receive little direct supervision.

Professional Employees

There are three types of professional employees that can qualify for exemptions:

• Licensed Professionals. People who are licensed or certified by the State of California and are primarily engaged in the practice of: law, medicine, dentistry, optometry, architecture, engineering, teaching,⁠ 48 or accounting.⁠ 49
• Learned Professionals. People who have advanced knowledge in a field of science or learning that is customarily acquired by prolonged and specialized study.⁠ 50
• Creative Professionals. People who focus on invention, imagination, originality, or talent in a recognized field that is artistic or creative.⁠ 51

The professional employee exemption is fact-specific and depends on the nature of the work that the employee primarily undertakes.

Of note, registered nurses who are employed to engage in the practice of nursing are not exempt professionals, but they might still be exempt as administrators or executives.⁠ 52

The Discretion and Independent Judgment Requirement ☍ Click to Copy a Link to This Chapter

The Discretion and Independent Judgment Requirement

To qualify as an exempt employee, California’s Labor Code requires the worker to regularly exercise discretion and independent judgment in performing their duties.⁠ 53

An employee exercises discretion and independent judgment when the employee makes and implements important choices after considering competing courses of action.⁠ 54

An employee’s judgment is independent when it is free from immediate direction or supervision, even if an employee who is higher in the management chain has the authority to override the decision.⁠ 55

Job-Specific Exemptions ☍ Click to Copy a Link to This Chapter

Job-Specific Exemptions

In addition to the main exemptions explained above, a handful of other occupations are exempt from some or all of California’s labor laws. The more common exemptions are discussed below.

Commissioned Employees

Employees who are paid on a commission basis are sometimes exempt from California’s overtime pay laws. To qualify for this exemption, the following requirements must be met:

• The employee’s earnings are more than one-and-a-half times the minimum wage.
• Commission payments constitute more than half of the employee’s total compensation.
• They work in either: the retail industry, or a professional, technical, or clerical occupation.⁠ 56

Commissions are wage payments that an employee is entitled to as a result of sales they make. In a commission-based arrangement, the size of the employee’s compensation depends on the amount or value of the thing that was sold.⁠ 57

A discretionary payment that an employer can choose to pay or withhold, such as a performance bonus, is not a commission even if it is computed as a percentage of sales or profits.⁠ 58

Physicians and Surgeons

Licensed physicians and surgeons are sometimes exempt for the purposes of overtime compensation. To fall under this exemption, the physician or surgeon must:

• Be paid at an hourly rate of at least $97.99 per hour.⁠ 59
• Perform, as their primary duties, tasks that require them to be licensed.⁠ 60

The applicability of this exemption is limited. Medical interns and residents do not qualify. Nor do physicians covered by certain types of collective bargaining agreements.⁠ 61

Computer Professionals

Employees in the computer software field are sometimes exempt for the purposes of overtime compensation.⁠ 62 To qualify for this exemption, the following requirements must be met:

• The employee must be primarily engaged in work that is intellectual or creative.⁠ 63
• The employee’s primary duties must require the exercise of discretion and independent judgment.⁠ 64
• The employee must be highly skilled in a field of computer systems analysis, programming, or software engineering.⁠ 65
• The employee’s primary duties must involve designing or developing computer hardware or software.⁠ 66
• If the employee is hourly, they must be paid at least $53.80 per hour.⁠ 67
• If the employee is salaried, they must earn at least $112,065.20 per year.⁠ 68

Private School Teachers

Many teachers are exempt under the professional exemption described above. But some teachers at private schools are exempt even if they don’t meet those requirements. Instead, they will be considered exempt if:

• They teach students who are in kindergarten or any of grades 1 through 12,
• They earn at least twice the state’s minimum wage, and
• They hold a baccalaureate degree (or higher) from an accredited institution of higher learning, or they meet the requirements for a teaching credential from California or any other state.⁠ 69

Outside Salespersons

Employees who are considered “outside salespersons” are generally considered exempt employees.⁠ 70 An outside salesperson is defined as someone:

• Who is at least 18 years old,
• Who spends more than half of their working time away from their employer’s place of business, and
• Who sells items, services, contracts, or the use of facilities.⁠ 71

Truck Drivers

Some truck drivers are exempt from California’s overtime laws (but not other employment rights, like meals breaks or the minimum wage).⁠ 72 This exemption applies to interstate truck drivers and drivers who transport hazardous materials.⁠ 73

In those situations, the drivers’ hours are controlled by either: federal regulations,⁠ 74 or California’s motor vehicle regulations.⁠ 75

Union Employees

Union employees are sometimes exempt from California’s overtime laws.⁠ 76 To qualify as exempt, the employees must be employed under a collective bargaining agreement that expressly provides for the wages, hours of work, and working conditions of the employees.⁠ 77

The collective bargaining agreement must also provide premium wage rates for all overtime hours worked and a regular hourly rate of pay of at least 30 percent more than the state minimum wage.⁠ 78

Other Job-Specific Exemptions

California law is governed, in part, by a series of regulations called wage orders , which have been issued California’s Industrial Welfare Commission.⁠ 79 The wage orders have adopted several exceptions to California’s overtime laws, in addition to those listed above, that apply to workers in specific industries or jobs. Occupations to which special overtimes rules apply include:

• Live-in household employees;⁠ 80
• Personal attendants;⁠ 81
• Camp counselors⁠ 82
• Managers of homes for the aged;⁠ 83
• Certain providers of 24-hour residential childcare;⁠ 84
• Ambulance drivers and attendants;⁠ 85
• Agricultural occupations;⁠ 86 and
• The employer’s spouse, children, and parents.⁠ 87

Consequences of Misclassification ☍ Click to Copy a Link to This Chapter

Consequences of Misclassification

California courts narrowly construe the exemptions explained above. The employee must “plainly and unmistakably” meet the standard required for the exemption.⁠ 88 Otherwise, the employee should be classified as nonexempt.

This standard strongly favors the employee, and the employer has the legal burden of proving an exemption.⁠ 89 When employers fail to properly treat their employees as nonexempt, the consequences can be severe.

California law provides for a variety of penalties for Labor Code violations. Some of the most common examples are below.

Unpaid Overtime

Nonexempt employees in California have a right to be paid overtime wages when they work more than eight hours in a workday, 40 hours in a work week, or seven consecutive days.⁠ 90 When employers misclassify their employees as exempt , they often fail to pay the employee overtime wages.

Employees who have been deprived of overtime pay because of a misclassification can seek back-pay for the unpaid overtime wages the employee earned.⁠ 91 These can add up quickly, even for employees earning a low amount.

Additionally, the employer may be obligated to pay the legal costs and attorney fees that the employee incurred while pursuing their overtime wages.⁠ 92

In some cases, there may also be a penalty of $100 or $200 per pay period in which California’s overtime laws were violated.⁠ 93 That penalty is normally payable to the State of California, but there are some situations in which the employee can recover up to 25% of it.⁠ 94

Rest Break and Meal Period Penalties

Non-exempt employees are entitled to meal breaks and rest periods .⁠ 95 Employers who misclassify their employees as exempt commonly fail to provide the required breaks.

When an employee misses a meal period or rest break, they are entitled to one extra hour of pay at the employee’s regular hourly rate.⁠ 96

If the employee misses multiple rest breaks or meal periods, they can earn up to one extra hour per workday for their missed rest periods and an additional one hour per workday for their missed meal breaks.⁠ 97

Thus, a twelve-hour shift with no rest or meal breaks will entitle the employee to two extra hours of pay at the employee’s regular hourly rate.⁠ 98

Pay Stub Penalties

If the employer failed to keep proper records of the employee’s work, the employer may be obligated to pay the employee a penalty pay stub penalty.⁠ 99 The amount of the penalty depends on the number of pay periods that the violation lasted.

For the first pay stub violation, the employee is entitled to a $50 penalty.⁠ 100 The employee is then entitled to a penalty of $100 per pay period for every violation after that, up to $4,000.⁠ 101

This penalty often arises when the employee isn’t sure how much back-pay they might be owed because the employer mistakenly classified the employee as exempt.

Waiting Time Penalties

When an employer willfully fails to pay an employee’s wages on-time as requirement by the Labor Code, they can be subject to a waiting time penalty. If an employee has been deprived of their full pay due to being misclassified as exempt, they are sometimes entitled to receive this.

Specifically, a delayed payment can result in a penalty of up to 30 days of the employee’s wages.⁠ 102 The unpaid wages accrue on a daily basis, not just for the days that the employee might have worked⁠—⁠but also on non-workdays.

What to Do If You Have Been Misclassified ☍ Click to Copy a Link to This Chapter

What to Do If You Have Been Misclassified

Employees who have been improperly classified as exempt have three basic options:

• Resolve their dispute informally with their employer,
• File a lawsuit in court, or
• File a wage claim with California’s Division of Labor Standards Enforcement (the “DLSE”).⁠ 103

The best way to resolve an exemption dispute will depend on the employee’s specific situation. It’s usually a good idea to get the opinion of a lawyer before deciding how to proceed.

Employees should keep in mind, however, that there are strict deadlines they need to meet to file a wage claim or lawsuit.

Deadlines to File Claims

Employees usually have three years in which to make a wage claim under California law.⁠ 104

The clock begins to run at the time the wages first become legally due. Usually, wages first become due on the regular payday for the pay period in which the employee performed the work.⁠ 105

When the work is continuing and the employee is paid periodically (e.g., weekly or monthly) a separate and distinct cause of action accrues on each payday, triggering on each occasion the running of a new period of limitations.⁠ 106

Employees wishing to pursue certain types of claims may face a shorter deadline. A claim for the breach of an oral contract must be filed within two years .⁠ 107

A claim seeking statutory penalties may also face a short deadline. The law is somewhat unsettled, but some penalties for the late payment of wages may be subject to a one-year statute of limitations.⁠ 108 Other penalties, however, are subject to the normal three-year statute of limitations.⁠ 109

In some cases, a claim for unpaid wages (but not penalties) can be pursued as late as four years after the claim began to accrue. To take advantage of this longer statute of limitations, the employee must be filing their claim based on a breach of a written contract.⁠ 110

Alternatively, the employee might be able to claim the failure to pay their wages was an unlawful business practice under California’s Unfair Competition Law.⁠ 111 This is sometimes another way for an employee to access a four-year statute of limitations, but the remedies can be limited.⁠ 112

Federal Cases

Employees can usually seek back pay for overtime wages earned during the two years prior to making a wage claim. Federal law extends that time to three years if the misclassification was willful.⁠ 113

Labor Code, § 515, subd. (a); Cal. Code of Regs., tit. 8, § 11040 [providing that, for each exempted category, the employee must earn “a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment”]. ↥

Labor Code, § 515, subd. (a) [“The Industrial Welfare Commission may establish exemptions from the requirement that an overtime rate of compensation be paid pursuant to Sections 510 and 511 for executive, administrative, and professional employees, if the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.”]. ↥

Labor Code, § 515, subd. (a) [requiring employees to “customarily and regularly exercises discretion and independent judgment in performing” the duties of their job]. ↥

29 U.S.C. § 206(a)(1)(C). ↥

Labor Code, § 1182.12, subds. (b)(2). ↥

Labor Code, § 1182.12, subds. (b)(1). ↥

29 U.S.C. § 207. ↥

Labor Code, § 510. ↥

Labor Code, § 510, subd. (a) [“Eight hours of labor constitutes a day’s work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee.”]; see also Labor Code, §§ 511, 514, 515. ↥

Labor Code, § 510, subd. (a) [“Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee.”]. ↥

Labor Code, § 512, subd. (a) [“An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.”]; Cal. Code of Regs., tit. 8, § 11050, subd. (11). ↥

Labor Code, § 512, subd. (a) [“An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.”]. ↥

Labor Code, § 512, subd. (a). ↥

Cal. Code of Regs., tit. 8, § 11050, subd. (11)(A) [“Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an ‘on duty’ meal period and counted as time worked. An ‘on duty’ meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.”]. ↥

Cal. Code of Regs., tit. 8, § 11050, subd. (11)(B) [“If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.”]. ↥

See, e.g., Labor Code, § 512, subd. (e) [exempting certain unionized employees from the normal meal break rules under the right conditions]. ↥

Labor Code, §§ 512, subd. (a), 516, subd. (a) [stating that, with the exception of meal breaks described in Labor Code section 512, “the Industrial Welfare Commission may adopt or amend working condition orders with respect to break periods”]. ↥

Cal. Code of Regs., tit. 8, § 11040, subd. (12)(A) [“Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. . . . Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”]. ↥

Cal. Code of Regs., tit. 8, § 11040, subd. (12)(A) [“[A] rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours.”]. ↥

Cal. Code of Regs., tit. 8, § 11040, subd. (12)(B) [“If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.”]. ↥

Labor Code, § 1030 [“Every employer, including the state and any political subdivision, shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child.”]. ↥

Labor Code, § 1030 [“The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission shall be unpaid.”]. ↥

See 29 U.S.C § 213 [federal exemptions]; Cal. Code of Regs., tit. 8, § 11040, subd. (1)(A). ↥

Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 562 [“Exemptions are narrowly construed against the employer and their application is limited to those employees plainly and unmistakably within their terms.”]; Arnold v. Ben Kanowsky, Inc. (1960) 361 U.S. 388, 392 [80 S.Ct. 453, 456] [“We have held that [FLSA] exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.”]. ↥

Labor Code, § 515, subd. (a); Cal. Code of Regs., tit. 8, § 11040. ↥

Labor Code, § 515, subds. (a), (c). ↥

Negri v. Koning & Associates (2013) 216 Cal.App.4th 392, 395; Kettenring v. Los Angeles Unified School Dist. (2008) 167 Cal.App.4th 507, 513⁠–⁠514. ↥

Negri v. Koning & Associates (2013) 216 Cal.App.4th 392, 398 [“Since federal law requires that, in order to meet the salary basis test for exemption the employee would have to be paid a predetermined amount that is not subject to reduction based upon the number of hours worked, state law requirements must be at least as protective.”]; Kettenring v. Los Angeles Unified School Dist. (2008) 167 Cal.App.4th 507, 513⁠–⁠514 [salary cannot be “subject to reduction because of variations in the quality or quantity of the work performed”], quoting 29 C.F.R. § 541.602(a). ↥

Conley v. Pacific Gas and Elec. Co. (2005) 131 Cal.App.4th 260, 267; 29 C.F.R. § 541.602(b)(1). ↥

Conley v. Pacific Gas and Elec. Co. (2005) 131 Cal.App.4th 260, 267 [“It is undisputed that the combined effect of these provisions of federal law is to preclude employers from docking the pay of an employee for an absence of less than a day (a partial-day absence). If they do, then the involved employees do not meet the salary basis test, and are nonexempt for purposes of overtime pay .”]. ↥

Negri v. Koning & Associates (2013) 216 Cal.App.4th 392, 400. ↥

Labor Code, § 1182.12, subds. (a). ↥

Labor Code § 515(a). ↥

29 C.F.R. § 541.2; Negri v. Koning & Associates (2013) 216 Cal.App.4th 392, 398 [“[S]tate law requirements for exemption from overtime pay must be at least as protective of the employee as the corresponding federal standards.”]. ↥

Labor Code, § 515, subd. (e) [“For the purposes of this section, ‘primarily’ means more than one-half of the employee’s worktime.”]. ↥

Labor Code, § 515, subd. (a); Cal. Code of Regs., tit. 8, §§ 11010⁠–⁠11170 [wage orders of the California Industrial Welfare Commission]. ↥

Cal. Code of Regs., tit. 8, §§ 11010⁠–⁠11150, subds. (1)(A)(2) [defining administrative employee under California law]. An employee might also be considered administrative if they perform “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.” ( Id. ) ↥

29 C.F.R. § 541.201(a). ↥

29 C.F.R. § 541.201(b). ↥

Cal. Code of Regs., tit. 8, §§ 11010⁠–⁠11150, subds. (1)(A)(1) [defining executive employee]. ↥

29 C.F.R. § 541.102. ↥

“Teaching” for these purposes only applies to teaching under a certificate from the Commission for Teacher Preparation and Licensing or teaching in an accredited college or university. (Cal. Code of Regs., tit. 8, § 11040, subd. (2)(R). ↥

Cal. Code of Regs., tit. 8, §§ 11010⁠–⁠11150, subds. (3)(A). ↥

Cal. Code of Regs., tit. 8, §§ 11010⁠–⁠11150, subds. (3)(B). ↥

29 C.F.R. § 541.300 [defining professional employee under the federal FLSA]; Cal. Code of Regs., tit. 8, §§ 11010⁠–⁠11150, subd. (1)(A)(3) [defining professional employee under California law]. ↥

Labor Code, § 515, subd. (f)(1). ↥

Labor Code, § 515, subd. (a). ↥

29 C.F.R. § 541.202(a) [“In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered.”]. ↥

29 C.F.R. § 541.202(c) [“The exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision. However, employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level.”]. ↥

Cal. Code of Regs., tit. 8, §§ 11040, subd. (3)(D), 11070, subds. (3)(D). ↥

Labor Code § 204.1 defines commissions as “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.” (See also Areso v. CarMax, Inc. (2011) 195 Cal.App.4th 996, 1003. ↥

See Labor Code, § 2751, subd. (c) [excluding short-term productivity bonuses, bonus and profit-sharing plans that are not based on a fixed percentage of sales or profits, and “[t]emporary, variable incentive payments that increase, but do not decrease, payment under the written contract” from the statutory definition of a commission]. ↥

Overtime Exemption for Licensed Physicians and Surgeons (Oct. 2022), available here (Opens in new window) ↥

Labor Code, § 515.6 [“Section 510 shall not apply to any employee who is a licensed physician or surgeon, who is primarily engaged in duties that require licensure pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code, and whose hourly rate of pay is equal to or greater than fifty-five dollars ($55.00). The department shall adjust this threshold rate of pay each October 1, to be effective the following January 1, by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.”]. ↥

Labor Code, § 515.6, subd. (b). ↥

Labor Code, § 515.5. ↥

Labor Code, § 515.5, subd. (a)(1). ↥

Labor Code, § 515.5, subd. (a)(3). ↥

Labor Code, § 515.5, subds. (a)(2)(A)–(C). ↥

Labor Code, § 515.5, subd. (a)(4); Overtime Exemption for Computer Software Employees (Oct. 2022), available here (Opens in new window) . ↥

Labor Code, § 515.8. ↥

Cal. Code of Regs., tit. 8, §§ 11010⁠–⁠11170, subds. (1)(C). ↥

Cal. Code of Regs., tit. 8, §§ 11010⁠–⁠11170, subds. (2)(M). ↥

See, e.g., Cal. Code of Regs., tit. 8, § 11090 (3)(L). ↥

Cal. Code of Regs., tit. 8, § 11090 (3)(L); 49 C.F.R. §§ 395.1⁠–⁠395.13; Cal. Code of Regs., tit. 13, § 1200, et seq. ↥

See 49 C.F.R. §§ 395.1⁠–⁠395.13. ↥

See Cal. Code of Regs., tit. 13, § 1200, et seq.; see also Collins v. Overnite Transp. Co. (2003) 105 Cal.App.4th 171, 175. ↥

Labor Code, § 514. ↥

Labor Code, § 1173. ↥

Cal. Code Regs., tit. 8, § 11150, subd. 3. ↥

Cal. Code Regs., tit. 8, § 11050, subd. 3. ↥

Cal. Code Regs., tit. 8, § 11140, subd. 3. ↥

See, e.g., Cal. Code Regs., tit. 8, § 11040, subd. 1(D). ↥

Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 562 [“Exemptions are narrowly construed against the employer and their application is limited to those employees plainly and unmistakably within their terms.”]. ↥

Ramirez v. Yosemite Water Co., Inc. (1999) 20 Cal.4th 785, 794⁠–⁠795 [“[T]he assertion of an exemption from the overtime laws is considered to be an affirmative defense, and therefore the employer bears the burden of proving the *795 employee’s exemption.”]. ↥

Labor Code, §§ 204, 510, subd. (a) [“Eight hours of labor constitutes a day’s work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee.”]; see also Labor Code, §§ 511, 514, 515. ↥

Labor Code, §§ 204, 1194, subd. (a). ↥

Labor Code, § 1194, subd. (a). ↥

Labor Code, §§ 204, 210, 225.5. ↥

Labor Code, §§ 210, 225.5; Labor Code, §§ 2698⁠–⁠2699.5. ↥

See, e.g., Cal. Code of Regs., tit. 8, §§ 11010⁠–⁠11150, subds. (11)(B). ↥

Labor Code, § 226.7, subd. (c); Cal. Code of Regs., tit. 8, §§ 11010⁠–⁠11150, subds. (11)(B), (12)(B). ↥

United Parcel Service, Inc. v. Superior Court (2011) 196 Cal.App.4th 57, 69. ↥

Labor Code, § 226. ↥

Labor Code, § 226, subd. (e)(1). ↥

Labor Code, § 226, subd. (e)(1) [“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 to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney’s fees.”]. ↥

Labor Code, § 203, subd. (a); see McLean v. State of California (2016) 1 Cal.5th 615, 619 [“An ’employer’ that ‘willfully fails to pay’ in accordance with sections 201 and 202 ‘any wages of an employee who is discharged or who quits’ is subject to so-called waiting-time penalties of up to 30 days’ wages.”]. ↥

See Reynolds v. Bement (2005) 36 Cal.4th 1075, 1084 [“The employee may seek judicial relief by filing an ordinary civil action against the employer for breach of contract and/or for the wages prescribed by statute. [Citations.] Or the employee may seek administrative relief by filing a wage claim with the commissioner pursuant to a special statutory scheme codified in [Labor Code] sections 98 to 98.8.”]. ↥

Code Civ. Proc., § 338, subd. (a) [statute of limitations: “Within three years: (a) An action upon a liability created by statute, other than a penalty or forfeiture.”]; Aubry v. Goldhor (1988) 201 Cal.App.3d 399, 404 [“[A]n employer’s obligation to pay overtime compensation to his employee would not exist but for the Labor Code. An action to enforce that obligation therefore is governed by the three-year statute of limitations . . . .”]. ↥

Cuadra v. Millan (1998) 17 Cal.4th 855, 859. ↥

Code of Civ. Proc., § 339. ↥

See Code Civ. Proc., § 340, subd. (a) [statute of limitations: “Within one year: (a) An action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation.”]. ↥

Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1392⁠–⁠1401. ↥

Code Civ. Proc., § 337, subd. (1) [“Within four years: 1. An action upon any contract, obligation or liability founded upon an instrument in writing . . . .”]. ↥

Bus. & Prof. Code, § 17208. ↥

See Bus. & Prof. Code, § 17203; Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 178 [“[A]n order that a business pay to an employee wages unlawfully withheld is consistent with the legislative intent underlying the authorization in section 17203 for orders necessary to restore to a person in interest money or property acquired by means of an unfair business practice.”]. ↥

29 U.S.C. § 255(a). ↥

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Travel Pay Laws in California: What Employees Need to Know

Sometimes our employers require us to travel for work-related purposes. But what aspects of employee travel are California employers required to pay for? Travel pay in California can be a confusing area of law, but the following overview can help you navigate the ins and outs of travel pay laws in the California workplace.

Understanding Travel Pay Laws in California

As a general rule, California employees are paid for all of their time spent working, and this includes time that an employee spends traveling for work. If an employee is eligible for overtime compensation, and the employee’s travel time puts him or her over the standard forty-hour work week, then the employee should be paid overtime compensation accordingly. Yet all employees know that their commute to and from work is generally not considered time they spend working. So at what point does the time an employee spends behind the wheel, on a subway or train, or in a taxi for work become compensable travel time?

• Compensable travel time must be considered hours worked.  If your employer controls you during the time you spend traveling, or you are permitted to work during travel time, then you should be compensated as these hours are considered hours worked.
• If travel is made on an employer-selected route.  If you travel along an employer-selected route, then you are under your employer’s control and should be compensated for the travel time.
• If travel is for the purpose of delivering work-related items.  If you are required to use your vehicle to deliver work-related items – such as tools to a worksite, or food to hungry customers at their homes – then the time traveled is considered hours worked and you should be paid for the travel time.
• Time spent getting to job functions may be compensable.  If you spend time getting to a meeting or conference that is work-related, it is likely compensable travel time. Similarly, time spent getting to an alternative worksite from your home, or to an airport or train station for work-related travel is usually compensable travel time.
• Reimbursement for work-related vehicle use.  Additionally, you should be reimbursed for wear and tear and mileage associated with work-related travel, under California Labor Code Section 2802.

Compensated travel time is important to employees who must travel for work. California employees must be notified of the travel rate in advance, and the travel rate cannot be less than minimum wage. Sometimes travel time is compensated at a different rate than normal hours worked, but employees who are eligible for compensated travel time should be paid accordingly under California law.

In conclusion, California employees who travel for work are often entitled to travel pay. If you believe that you should have received travel pay, but were not compensated by your employer, please consult with an experienced  California employment lawyer  regarding the matter. Get a free consultation today.

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Travel Time

Time spent traveling during normal work hours is considered compensable work time. Time spent in home-to-work travel by an employee in an employer-provided vehicle, or in activities performed by an employee that are incidental to the use of the vehicle for commuting, generally is not "hours worked" and, therefore, does not have to be paid. This provision applies only if the travel is within the normal commuting area for the employer's business and the use of the vehicle is subject to an agreement between the employer and the employee or the employee's representative.

Webpages on this Topic

Handy Reference Guide to the Fair Labor Standards Act - Answers many questions about the FLSA and gives information about certain occupations that are exempt from the Act.

Coverage Under the Fair Labor Standards Act (FLSA) Fact Sheet - General information about who is covered by the FLSA.

Wage and Hour Division: District Office Locations - Addresses and phone numbers for Department of Labor district Wage and Hour Division offices.

State Labor Offices/State Laws - Links to state departments of labor contacts. Individual states' laws and regulations may vary greatly. Please consult your state department of labor for this information.

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Understanding Travel Time Pay Laws for Non-Exempt Employees

Brad Johnson : January 8, 2020 at 8:34 AM

Federal labor laws have specific parameters set out by the Fair Labor Standards Act (FLSA) when it comes to determining compensable time while traveling. State laws may differ from the federal standards, so it’s important for companies to check in on their local laws as well. When these two sets of laws differ, employers should always choose the more generous of the two options. 

Not sure how to compensate employees for off-site work? We’ve laid each scenario below to simplify and answer all your common questions.

Unpaid: Home-to-Work and Work-to-Home Travel

Employers are not responsible to pay for a worker’s commuting time or mileage if they are traveling to or from their traditional workplace. “Commuting,” in this case, does not count as “traveling” for work. Even if the employee lives a considerable distance from work, their typical commute goes unpaid . The Department of Labor clarifies that this is even true when operating employee-sponsored vehicles.

Paid: Worksite-to-Worksite Travel

The scenario changes when employees are required to travel beyond their commute to perform their duties. Non-exempt employees that work at multiple locations are paid if travel is required during their workday. Paid travel does not include commuting to and from their first worksite from home.

Paid: Same-Day Travel

One-day conferences or meetings outside your city may send employees hitting the road for just a few hours. If you need to send an employee out of the office for the day, this trip and time are compensable. You may, however, exclude the typical time spent traveling to and from work when finalizing their hours. This extra time counts as their typical commute as if they had come to work for a typical day. 

Paid: Overnight Travel

Time spent traveling for work over one or more nights must be paid when they occur during an employee’s normal work hours. This rule stands no matter the day of the week and is always the case if the employee is the driver. This is more complicated, however, if the hours fall outside of the employee’s normal work hours and the employee is the passenger. For example, if any employee rides as a passenger outside their typical work hours — and is not required to work during that time — those hours are not compensable .

Tracking Paid Travel Time

How do you keep travel of travel time pay to ensure you meet the standards of the Fair Labor Standards Act ? The key is ensuring both you and your employees are always on the same page. During your onboarding process, use this time to go over your travel policy specific to non-exempt employees. Distribute a clear travel policy before the trip, including your method for tracking hours and reporting data.

Even when you request that the employee should keep track of their own hours and expenses as they travel, the responsibility ultimately falls to the employer for best recordkeeping. For example, an employee may not realize that they should have counted their overnight trip as compensable hours and failed to submit their timesheet. Just because they did not properly record them does not mean the hours should not be paid. 

Lay down to a process for communicating time worked before the travel takes place. This may come down to using your online time clock system and/or submitting an expense report with receipts upon their return.

Additional Travel Pay

Travel compensation for both exempt and nonexempt employees goes beyond hourly pay in certain scenarios. Workers should never lose money for basic needs or required travel necessities.

Optional: Per Diem

Employers are not required to offset the costs of meals on an employee’s trip, though it is customary to do so whenever possible. Either way, per diem allocations do not replace travel costs and compensable time.

If you do choose to alot a per diem, the standard practice is to provide a specific amount per meal that the employee is traveling. For example:

• $15 for each breakfast
• $25 for each lunch
• $40 for each dinner

Depends: Alternate Travel Pay Rate

You are allowed to offer a different travel pay rate as long as the hourly amount is not below minimum wage. You must also communicate the different rates with your team, preferably at the start of their employment. Be sure your travel policy, including any pay differences, are outlined in writing to avoid confusion.

Necessary: Overtime

If a travel time puts employees over the 40-hour workweek—which is counted as Sunday-Saturday—you are required to comply with overtime laws and pay the additional amount. When federal and state overtime laws vary, employers are obligated to follow the more generous of the two laws just as with travel standards.

Sending employees out for off-site assignments can be a valuable tool for your business. Issues only arise when the employee travel policy remains unclear before travel occurs. Always be sure to review your local and federal labor laws when creating a travel policy with your team. Horizon Payroll Solutions provides HR support and payroll management services to streamline your travel compensation process. 

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HR - Travel Policy for Non-Exempt Staff - CA

Policy statement and reason.

For the purpose of this policy, employees include California non-exempt staff only. All provisions of this policy apply, except that for employees covered by a collective bargaining agreement, this policy does not create any benefits not expressly provided by that collective bargaining agreement and if there are inconsistencies between this policy and the collective bargaining agreement, the terms of the collective bargaining agreement will govern. 

This policy addresses the compensability of required work-related travel for non-exempt staff employees in accordance with applicable state and federal law.

Policy Guidelines

Emerson compensates non-exempt staff employees for travel time in accordance with applicable state and federal law. Travel time that is considered working time will be paid at the non-exempt staff employee’s regular hourly rate and will be factored into overtime calculations. Regular meal breaks are not considered working time in any of the situations described below. Non-exempt staff employees must take a thirty (30)-minute unpaid meal break if they work five (5) hours in a workday and unpaid ten (10)-minute breaks for every four (4) hours they work. 

Eligibility

This policy applies to all non-exempt staff employees, who will be referred to below as “employee” or “employees.”

Commuting Time

Ordinary travel time between home and work before and after the regular workday commuting time is not treated as working time.

Travel During Regular Working Time

The College will compensate employees for (a) work-related travel time (this does not include ordinary commute time between home and work); and (b) associated transportation expenses for work-related travel. For example, this means that if an employee must travel from the employee’s regular work site to another work site during regular working hours, the College considers that working time and will compensate the employee.

Travel on a Special One-Day Assignment

If the employee must report to a specified location (i.e., airport, train station, etc.) in order to take transportation to an alternative work site, and the travel to the specified location is substantially the same as the distance and time between the employee’s home and usual place of reporting for work, the College will begin calculating compensable working time when the employee reports to the specified location. Working time includes subsequent travel to and from the alternative work site, but does not include commute time home.

Recording Travel Time

Non-exempt employees shall record travel time in the same manner as they record non-travel time. All timesheets must be approved by their manager, and all overtime must be pre-approved.

Employees are responsible for accurately documenting and recording their time worked on their time sheets. The College takes fraudulent entries seriously. The College may take disciplinary action, up to and including termination, when employees make or managers knowingly or negligently approve fraudulent time entries.

Other Information

Related policies, key offices to contact .

Please contact Human Resources for further information regarding this policy and its implementation.       

Links to Procedures or Forms

Not applicable

Definitions

Non-Exempt:  Non-exempt employee refers to a category of employees entitled to overtime pay as described in the Fair Labor Standards Act (FLSA).  Non-exempt employees must be paid for each hour they work and 1.5 times their hourly wage for any hours worked over 40 in a workweek. 

The contents of this policy are informational only and are not conditions of employment.  This policy does not create any contractual obligations or alter the at-will employment of the College’s at-will employees. Emerson College reserves the right to modify, revoke, suspend, terminate, or change any and all policies and procedures at any time, with or without notice, as consistent with state and federal law.

Policy Effective Date:  May 2019

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• Exempt and Nonexempt Employees

Understanding Exempt Employees vs. Nonexempt Employees in California

Some of the most significant class action lawsuits have been the result of an employer's misclassification of nonexempt employees as though they were exempt from California overtime. This section discusses the exempt and nonexempt classifications with reference to California standards for minimum salary and job responsibilities.

Exempt vs. Nonexempt California Employee Classification

Strict duties test.

To be considered an exempt employee in California, an employee will generally need to meet a strict duties test. For most exemptions, more than 50 percent of an employee's time must be spent performing exempt job duties.

Job Title Irrelevant

Job titles do not determine a California employee's exempt or nonexempt status. An employee with an impressive job title may not qualify as an exempt employee if their actual duties do not meet the requirements for one of the exemptions.

Try the Exempt/Nonexempt Wizard > The Exempt/Nonexempt Wizard walks you through a series of questions to help you determine if a job position should be classified as exempt or nonexempt.

Labor Commissioner's Determination

To determine whether the California employee is primarily engaged in exempt work, the California's Labor Commissioner examines the work performed by the employee during the workweek.

Salary Considerations

Exempt employees in California generally must earn a minimum monthly salary of no less than two times the state minimum wage for full time employment. Simply paying an employee a salary does not make them exempt, nor does it change any requirements for compliance with wage and hour laws.

Discretion and Independent Judgment

Most California employees who are classified as exempt customarily and regularly exercise discretion and independent judgment in their jobs. Discretion and independent judgment involve comparing and evaluating possible courses of action and making a decision after considering various possibilities.

Federal Salary Basis Rules

While California law has more rigorous standards than federal law, federal law still warrants some attention. The Department of Labor Standards Enforcement (DLSE) has indicated that, although there are differences between the state and federal exemption standards, the federal regulations may serve as a guide where there is no conflict.

Deductions from Salary of Exempt Employees

The "salary test" required for exempt employees provides that the full weekly salary be paid for any week in which any work is performed, with only very limited exceptions. As a result, deductions from the salary of an exempt employee are limited.

Impermissible Deductions

There are a few examples of impermissible deductions, including:

• Unavailability of Work Do not make deductions when work is unavailable because of the business’ operational requirements, provided exempt employees are ready, willing and able to work. Thus, if July 4 falls on a Tuesday and you shut down the business for the balance of the week, any exempt employee who worked on Monday of that week is entitled to a full week's pay.

State vs. Federal Exemptions

The federal and state governments differ as to the application of exemptions to employees performing specific job duties.

Exemptions for California Employees

Executive exemption.

The executive exemption usually is applied to managerial employees. However, managers still have to meet the requirements for the exemption. If they do not, they must be classified as nonexempt, unless they can meet one of the other exemptions.

Administrative Exemption

The administrative exemption applies to a wide variety of employees. However, not all employees whose jobs involve administrative work will meet the administrative exemption and thus may need to be classified as nonexempt.

Professional Employee Exemption

Although an employee commonly may be considered a "professional", there are specific legal requirements that must be met to qualify for the professional exemption.

Computer Professional Exemption

Certain computer professionals are exempted from overtime if they are engaged in specific high-level computer-related duties, such as systems analysis or software design. The law requires a specific hourly, monthly or yearly salary which is set by the state of California each year.

Salesperson Exemption

For purposes of defining exempt vs. nonexempt status, salespeople are grouped into two categories: outside salespeople and inside salespeople. Different tests for exempt status apply to each one.

Artist Exemption

Relatively few individuals qualify for exemption as members of artistic professions in California, since most of those who have sufficient control over the nature of their own work and over their work hours are self-employed.

Related Resources

CalChamber members have access to several tools and services that help those who manage human resource to work through exempt and nonexempt-related issues, including:

Exempt/Nonexempt Wizard » The Exempt/Nonexempt Wizard is a tool that helps when judging between exempt vs. nonexempt. The tool walks you through a series of questions to help you determine if a job position should be classified as exempt or nonexempt.

Exempt vs. Nonexempt Forms & Checklists

Exempt Analysis Worksheet - Administrative Exemption » Use this worksheet to help evaluate the exempt vs nonexempt status for your administrative employees.

Exempt Analysis Worksheet - Computer Professional Exemption » Use this worksheet to help evaluate the exempt or nonexempt status for your computer professionals.

Exempt Analysis Worksheet - Executive Managerial Exemption » Use this worksheet to help evaluate the exempt or nonexempt status for your managers or executives.

Exempt Analysis Worksheet - Professional Exemption » Use this worksheet to help evaluate the exempt or nonexempt status for your professional employees (such as teachers, doctors or attorneys).

Exempt Analysis Worksheet - Salesperson Exemption » Use this worksheet to help evaluate the exempt or nonexempt status for your sales staff.

Job Description » Use this form as a guide to help you define duties for an open position for which you are recruiting a new employee or to clarify existing job duties, skills or essential functions of the job.

California Labor Law

• California Overtime Pay
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• California Break Laws and Calculating Travel Time
• Drug and Alcohol Testing
• Employee Handbook
• Family and Medical Leaves
• Independent Contractor vs. Employee
• Meal and Rest Break Law
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Try the Exempt/Nonexempt Wizard »

The Exempt/Nonexempt Wizard walks you through a series of questions to help you determine if a job position should be classified as exempt or nonexempt.

We’re here to help.

Travel time pay.

Q&A:   Under the FLSA, when must nonexempt employees be paid for travel time? https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/cms_014392.aspx  Employment Law:   DOL Says Not All Employee Travel During the Workday Is Compensable - Jan 2021 https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/not-all-employee-travel-time-is-compensable-.aspx  State/Local Update:   Driving Company Vehicle Didn't Make Commuting Time Compensable - May 2018 https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/driving-company-vehicle-did-not-make-commuting-time-compensable.aspx  ​​​​​​​ Sample Policy :  Travel Policy Nonexempt Employees: https://www.shrm.org/resourcesandtools/tools-and-samples/policies/pages/travel-policy-nonexempt-employees.aspx 

Q&A:   In California, what rules apply when determining what constitutes hours worked? (See Travel Time) https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/californiahoursofwork.aspx ​​​​​​​ Sample Policy :  California Travel Pay   https://www.shrm.org/resourcesandtools/tools-and-samples/policies/pages/california-travel-pay-policy.aspx  ​​​​​​​ ​​​​​​​

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My job is classified as salaried, nonexempt: What does that mean? Ask HR

Johnny C. Taylor Jr. tackles your human resources questions as part of a series for USA TODAY. Taylor is president and CEO of the Society for Human Resource Management, the world's largest HR professional society and author of "Reset: A Leader’s Guide to Work in an Age of Upheaval.”

Have a question? Submit it here .

Question: My job is classified as ‘salaried, nonexempt.’ Though I’ve seen the term many times before, I’ve never understood what exactly it meant. What does that mean? How does it affect my pay? – Marlene

Most people are either salaried or nonexempt, but some assume you can’t be both. Well, that’s wrong. “Salaried” means you are paid a weekly rate and “nonexempt” means you are still entitled to overtime pay for any hours worked over 40 in a week. So, let’s say you make $52,000 per year (or $1000 per week) and you work 50 hours one week. That week, you would earn a $1000 salary plus $375 overtime pay (10 hours at $37.50 per hour) as both a salaried and nonexempt employee.

These salary, hourly, exempt, and nonexempt classifications are regulated at the federal level. However, some states may have different overtime pay requirements, such as daily overtime calculations.

While the term “nonexempt” is often associated with hourly employees, your employer is not necessarily required to pay you on an hourly basis. Instead, nonexempt employees can receive compensation through various methods, including salary, piece rate, commission, etc., provided their total weekly pay meets the minimum wage requirements and overtime is appropriately compensated for any hours worked beyond 40 in a workweek.

Despite being paid a salary, as a salaried, nonexempt employee, your employer is still obligated to track and record your work hours. If you work overtime, your employer must calculate your regular hourly rate based on your salary and pay you accordingly for all overtime hours worked. This ensures compliance with federal and state labor laws regarding compensation for nonexempt employees.

Again, thanks for asking, and I hope this makes your job designation clearer.

I’m considering putting in for a transfer to another department. What is the best way to inquire about a transfer without burning bridges with my current team and manager? – Dean

Navigating an internal transfer while maintaining positive relationships with your current team and manager requires careful consideration and communication. Here’s how you can approach the process without burning bridges:

• Review company policies: Start by familiarizing yourself with your company's internal transfer policy and process. Ensure that you meet the eligibility requirements for a transfer and carefully assess the qualifications and skills required for the position you’re interested in.
• Initiate a candid discussion: Transparency is vital in this situation. Schedule a meeting with your manager to have an open and honest conversation about your intention to apply for a transfer. Clearly communicate your reasons for seeking the transfer, such as a desire for career growth or a better alignment with your career goals. Emphasize that your decision does not reflect any issues with your current team or manager, but rather a personal career choice.
• Involve human resources: Once you’ve discussed with your manager your intent to transfer, contact your HR department to kickstart the internal transfer process. They can provide guidance on the necessary paperwork and steps to formalize your request.
• Exercise discretion with co-workers: While being transparent with your manager is essential, consider keeping your intention to transfer confidential from your co-workers until your move is confirmed. This can help minimize any disruptions within your team, especially if you’re not ultimately selected for the transfer. However, if you are chosen for the new position, offer your assistance in training your replacement and supporting your team during the transition period.

Following these steps and maintaining open communication allows you to conduct the internal transfer process smoothly while preserving the valued relationships with your current team and manager. Good luck as you pursue this new opportunity!

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Travel Policy Nonexempt Employees

The purpose of this policy is to outline pay rules that apply to nonexempt employees when traveling on company business.

Employees in positions classified as nonexempt (overtime eligible) under the Fair Labor Standards Act may be eligible for compensation for the time they spend traveling. The compensation an employee receives depends on the kind of travel and whether the travel time takes place within normal work hours.

"Normal work hours," for the purposes of this policy, are defined as an employee's regularly scheduled work hours (e.g., 8:30 a.m. to 5:30 p.m.). This definition applies to normal workdays (Monday through Friday) and to weekends (Saturday and Sunday). Employees with variable work hours will have their normal work hours defined by human resources prior to travel, based on a review of time records over the previous month.

  "Travel time" is defined according to the type of travel involved:

Travel for a one-day assignment in another city : An employee who regularly works at a fixed location and is given a special one-day assignment in another city and returns home the same day will be paid for the time spent traveling to and from the other city, except for the time the employee would normally spend commuting to and from the regular worksite.

Travel during the workday : Time spent by an employee traveling as part of his or her regular job duties, such as travel from jobsite to jobsite during the workday, is work time and will be paid as such.

Travel away from home : Travel that keeps an employee away from home overnight is travel away from home. Travel time that takes place within normal work hours, regardless of the day of the week, is treated as work hours. When an employee travels between time zones, the time zone associated with the point of departure should be used to determine whether the travel falls within normal work hours. Time spent traveling from home to an airport terminal or train station is considered commute time and is not treated as hours worked. Time spent waiting at a terminal until arrival at the destination is compensable when it falls during normal work hours.

Travel time as the driver of an automobile : All authorized travel time spent driving an automobile (as the driver, not as a passenger) is treated as work hours, regardless of whether the travel takes place within normal work hours or outside normal work hours.

If an employee requests a specific travel itinerary or mode of transportation that is different from the one authorized by the company, only the estimated travel time associated with the itinerary and mode of transportation that has been authorized will be eligible for compensation. For example, if an employee drives a car as a matter of personal preference when an authorized flight or other travel mode is available, and the travel time by car would exceed that of the authorized mode, only the estimated travel time associated with the authorized mode will be compensated.

Travel time as a  passenger  in an automobile is not automatically treated as work hours. Travel as a passenger in an automobile is treated the same as all other forms of travel.

Calculating and Reporting Travel Time

Employees are responsible for accurately tracking, calculating and reporting travel time on their time sheets in accordance with this policy.

Meal periods should be deducted from all travel time.

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