An Administrator's Guide to California Private School Law

Chapter 6 – Wage And Hour Laws

last Monday in May (Memorial Day), July 4 (Independence Day), the first Monday in September (Labor Day), the second Monday in October (Columbus Day), November 11 (Veterans Day), Thanksgiving, the day after Thanksgiving and December 25. Just because a day is designated by the state as a “holiday” does not mean that an employee automatically gets that day off. Time off from work on a holiday, with or without pay, is entirely (1) at the discretion of the school, or (2) pursuant to the terms of a collective bargaining or similar type of agreement, or (3) pursuant to the terms of a private agreement between the school and employee. In addition, just because an employee works on a holiday does not mean that the school must pay the employee at a rate other than the employee's regular rate of pay, as any premium pay to reward the employee for working on the holiday is entirely (1) at the discretion of the school, or (2) pursuant to the terms of a collective bargaining or similar type of agreement, or (3) pursuant to the terms of a private agreement between the school and employee. Finally, if an employee gets a paid day off for a holiday, the paid day off is not counted for determining overtime for that workweek as no hours were actually worked on the holiday. C. W AGE P AYMENT – O THER R EQUIREMENTS A ND C ONSIDERATIONS 1. F IXED S ALARY F OR N ON -E XEMPT E MPLOYEES C ANNOT I NCLUDE O VERTIME Schools and employees may not agree to pay a fixed salary which includes both regular wages and overtime. Payment of a fixed salary to a non-exempt employee shall be deemed to provide compensation only for the employee’s regular, non-overtime hours, up to a maximum of 40 hours per week, notwithstanding any private agreement to the contrary. 685 2. D ISPUTED W AGES M UST B E P AID W ITHOUT C ONDITION Schools must pay all wages when they are due even if there is a dispute over the amount of wages due. 686 If the school has the ability to pay but willfully (or intentionally) fails to pay wages when they are due, the school may be required to pay a penalty of three times the amount due. The Labor Code makes it unlawful for schools to engage in self-help and withhold or offset money when the school disputes the amount owed. It also prevents a school from conditionally offering the disputed amount to coerce an employee into settling the disputed wage claim. 687 3. R ELEASE O F W AGE C LAIM P ROHIBITED Labor Code section 206.5 imposes a criminal penalty on schools who require their employees to release a claim for wages before payment of wages. Any such release is null and void and does not preclude the employee from pursuing a claim for the wages if the wages had not been paid. This section does not preclude supervised settlements resulting from a Labor Commission hearing that are permitted by Labor Code § 98.2, subdivision (e), stipulated settlements in court actions, and voluntary dismissals of court actions due to a settlement. 688

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 184