Five workplace rights San Diego workers should know
Wage theft claims in San Diego County are on the rise again after a pandemic dip. Local workers reported more than 3,300 instances of wage theft last year alone.
But labor rights advocates say official numbers underrepresent how widespread the issue really is — especially because many workers often do not realize when they are being stolen from.
Workers in California have some of the strongest laws protecting them of anywhere in the country, but asserting their rights requires knowing what they are.
Here are five workplace rights, according to the Department of Industrial Relations, that you might not know you have and that could constitute wage theft if violated:
1. You are owed overtime wages if you work more than 40 hours in one week or work more than eight hours in one day, or if you work seven days a week.
State overtime covers anytime an employee works more than eight hours in one day, or 40 hours in one week, or if an employee works seven days in a week. In those cases, the employee is owed 1.5x their regular pay.
If an employee works more than 12 hours in a day or more than eight hours on the seventh day in a row of working, they are entitled to double their normal pay.
Many professions are exempt from some or all overtime laws, including state and local government employees, drivers, actors, airline employees and student nurses. The DIR has a full list of those exemptions available here.
2. In most cases, you have a right to be an employee, rather than an independent contractor, and get the benefits of being an employee.
When an employer improperly designates an employee an independent contractor, it’s called misclassification. Employers could misclassify employees to skip out on paying payroll taxes, minimum wage, or overtime and to avoid giving break and rest periods.
Workers classified as independent contractors, as opposed to employees, are also exempt from many worker rights, too, such as sick time, family leave, the right to join a union and protection from employer retaliation.
The good news for workers is that California has “the strongest misclassification law in the nation,” said Lorena Gonzalez Fletcher, a former state assembly member covering San Diego County and now the executive secretary-treasurer of the California Labor Federation.
“For the most part, not in every case, but in most cases, if you're doing the work of a company, they need to pay you with a W2,” Gonzalez Fletcher said.
The state has a test, known as the ABC test, for determining whether a worker is an employee or independent contractor.
Misclassification is considered a form of wage theft, which means if you think you’ve been misclassified, you can report it as a wage theft claim to the state.
You can also apply for benefits from the Employment Development Department.
3. You are required to take a 30-minute unpaid meal break when working at least five hours in a day and a 10 minute paid break every four hours.
Some workers, like domestic workers and farm workers, have different rules for breaks, but for most workers, the 30 minute meal break needs to be uninterrupted, which means your boss can’t ask you to work during your break.
“You have to go off, leave the area you're working in and or just not do work,” said Bernadette Bautista, a labor rights lawyer who works with the Employee Rights Center, a nonprofit service provider focused on workplace and immigration rights.
“It's a person's time, so when someone starts eating their lunch and they're still working, that's not really considered a lunch.”
If you work more than 12 hours in one day, you must take an additional 30-minute meal period.
4. If you are fired, your employer has to pay you everything you’re owed within 24 hours of your last day of work.
Employees terminated from their jobs must be paid all of their wages, including unused vacation time, at the time they are fired. There are some exceptions, including certain agricultural workers and people working in the film, theater or concert industries.
If you quit your job, you must be paid all wages within 72 hours of giving notice that you're leaving the employer.
“Hundreds of people that I can think of have called (and) said, ‘They just didn't pay me my last paycheck and I had to chase him and chase him and chase him, and I could have used some money,” said Alor Calderon, director of the Employee Rights Center.
If your employer does not pay your final wages within the legal timeframe, you may be entitled to additional compensation called “waiting time penalty.”
5. Undocumented immigrants have workplace rights, and employers are not allowed to retaliate against immigrant workers based on their immigration status.
Immigrant workers in California have many rights, including being paid minimum wage, getting rest and meal breaks, being able to file workers compensation and wage theft claims and more.
Nearly a quarter of San Diego County’s population are foreign-born residents, which means more opportunity for those workers to be mistreated.
“We live in a Bordertown, so we live in a place where we have a lot of people working that don't have a status, or they come from Tijuana to work,” said Marisol Turincio, campaign manager at the Employer Rights Center.
Because of that, Turincio said, many employers try to exploit immigrant workers who don’t know their rights or might have a harder time fighting back on violations.
It is illegal for employers to report undocumented workers to immigration authorities as retaliation for complaining about workplace violations, but that doesn’t mean it won’t happen.
If an undocumented worker does find themselves reporting workplace violations, however, the Department of Homeland Security offers a program that grants witnesses or victims of workplace violations relief from deportation for a period of time on a case by case basis.
For more on workplace rights in California, visit the Department of Industrial Relations website.