California Wage Laws for Construction workers - California Labor Code and Wage Order 16
California has some of the strongest wages laws, if not THE strongest, wage laws in America. Wage laws for California workers come from two places: the the California Labor Code and California Wage Orders. Under California law, there are different Wage Order for different industries.
The construction industry in California is governed by California Wage Order 16.
Why most California construction workers don't know that they're owed thousands of dollars in unpaid wages and penalties
Most California construction workers have no idea that they are owed thousands and thousands of dollars in unpaid wages and penalties under California's strict wage laws. I've been doing this a long time. Based on what I see, most workers have no idea that the construction company is ripping them off for so much in wages every week. It's not your fault. You just don't know. Heck, most lawyers don't know this stuff either.
This is why I'm asked to testify before the California State Senate and California Assembly on wage legislation. Because, I know the nuts and bolts of how California workers - and California construction workers specifically - are owed thousands of dollars in unpaid wages and penalties.
In this article, I provide eye-opening construction case study after case study where California construction workers are not being paid the wages that they are entitled to under California's wage laws. Don't think that "it's only a few minutes a day, it's no big deal." This thinking can and will cost you thousands of dollars. I explain all of this in this article on California wage laws for construction workers.
SO, I strongly suggest that you pull up and chair and stay awhile. I also suggest that you don't skip over any of the case studies in this article. They are relatively short reading. And by reading these construction worker case studies, you will probably come to the realization that you, also, are owed a LOT of money in unpaid wages and penalties.
In this article our California wage and hour lawyers answer the following questions and/or address the following issues about unpaid wage laws for California construction workers:
We answer the following questions and/or address the following issues concerning wage laws for California construction workers
In this article our California wage and hour lawyers answer the following questions and/or address the following issues about unpaid wage laws for California construction workers:
Why do California's minimum wage laws apply to construction workers that may earn more than minimum wage? Minimum Wage (Why these laws may apply to you EVEN IF you're paid more than minimum wage)
Waiting time penalties
Minimum Wage (Why these laws may apply to you EVEN IF you're paid more than minimum wage)
California construction workers must be paid at least the minimum wage for all hours worked. California law says that you must be paid at least the minimum wage. California Labor Code Section 1194.
Since most construction workers in California are paid more than the minimum wage you might think that this section doesn't apply to you. That may not be the case. California minimum wage laws may apply to you, even if you are paid a lot more than the California minimum wage. Let me explain.
The key part is that you must be paid at least minimum wage for all hours worked. Thus, if there is any time that you are subject to the control of the employer and/or have duties, and you aren't being paid for this - then you are entitled to be paid for this time. You will have an argument concerning whether you must be paid at the "agreed upon rate" (read: what your pay is) or at the California minimum wage.
However, you may also be entitled to minimum wage if you're not paid for all of the time that you work, are subject to duties and/or the control of the construction employer.
Getting back to Section 1194, the way some courts have interpreted Section 1194 is that if you aren't getting paid for time that you work, Section 1194 makes this illegal. And Section 1194 only mandates that you get paid minimum wage. Thus, under California law, you are owed at least minimum wage for this time worked that you weren't paid for.
But the important part for you to understand is that California law requires that you get paid for all the time that you work.
A case study: Painters that aren't paid for cleaning their paint brushes (you need to read these case studies, even if you're not a painter, etc....)
I'll give you an example.
In a recent case against a construction painting company, the workers are painters on large commercial buildings and projects. The workers are told that they have to supply their own brushes and other equipment (be sure to see the section below about the company having to reimburse for business expenses, such as paint brushes).
Paint brushes must be washed out, or they will be ruined. Thus, the painters take their paint brushes home after each day's work and wash them out at home. The painters are owed for this time that they wash their brushes at home.
One of the issues in the case is whether the painters are owed for this time that they wash their brushes at the agreed upon rate or at the minimum wage.
Can California construction workers get liquidated damages? Liquidated damages for California construction workers
Case studies: framers, siders and carpenters that aren't paid for the time it takes to do maintenance on their nail guns
Let's talk nail guns: Many California construction workers use nail guns as part of their work. Such as framers, siders and carpenters. Most construction companies expect you to show up to work each day, ready to go. That is, have your nail gun ready to go. As it turns out, there is daily and monthly maintenance required on air guns.
For example, the Nail Gun Center recommends that on a daily basis you oil all moving parts, clean the feed system and lubricate the air fitting. They recommend that on a monthly basis that you tighten all screws and bolts and periodically that you inspect the battery and replace it.
Under California law, you must be paid for all of this work time. Even if it's only a few minutes a day. Even 2 minutes a day must be paid by California employees. Thus, we have seen this with framers, siders and carpenters. If you're a California framer, carpenter and/or sider - than this case study probably applies to you.
What if it's only 2 minutes a day, that I'm not paid for? ...Why even 2 minutes per shift in unpaid time adds up to thousands of dollars
In other words, don’t go thinking that “it’s only a couple minutes of day in unpaid time, so it’s not worth it.”
Do you work on construction site, where everybody on the construction site goes to lunch at the same time? That is, all work ceases when a bell or whistle goes off or exactly at 11 am, for example.
This is pretty common in the construction world. What you probably don't realize is that most companies are doing this illegally. And you are probably owed unpaid wages and penalties if the company you work for (or worked for) does this.
In this case study, workers at a construction site for a large apartment complex all go to lunch when a bell sounds at 11 am each day.
In fact, based on what I've seen, on most California construction sites - all operations cease at the same time when everyone goes to lunch. The construction workers get 1/2 hour for lunch. And it takes up to 5 minutes to get from where they're working on the jobsite to get to the entrance gate.
These construction workers are owed money for this walk time and they're owed an hour's pay for every missed meal break.
Do you want to know why? Then I suggest that you keep reading.
First, you're probably not getting paid for all time worked if everybody goes to lunch at the same time
As you might realize, this is not our first rodeo. In fact, we have been winning on this for a long time. When everyone goes to lunch at the same time, most folks are working at the construction site when the whistle blows, the buzzer goes off, or when it's 11 am. Workers at most job sites are expected to work right up to 11 am - or whatever time lunch time is.
Thus, if you are going to leave the job site during lunch, you have to walk off the construction site. If it takes you less than a minute to leave the job site, then you may have less to talk about. However, for many of the construction workers that we talk to it takes considerably more time than 1 minute to leave the job site at lunch time. For ironworkers, it could take 5 minutes or more. But if it take anymore than a minute to leave the job site, then this walk time must be paid for by the company. You are under the control of the company while you're walking or leaving the job site. You must be paid for this time.
Don't think that's "it's only a couple minutes, it's no big deal." Not.
Second, if your lunch is a 30 minute lunch (and all operations cease/ shut down during lunch); you're probably owed an hour's pay for each day
Under the California Supreme Court case - Brinker vs. Superior Court, the California Supreme Court established the duties employer have to provide meal breaks.
I know the Brinker case well, because I represented the workers in the Brinker case. Under the Brinker case, the company has to relieve you of all duties and all control during your lunch break. You have to be allowed to leave the job site during your lunch break.
Under the Brinker case, if you start you're lunch at 11 am (for example) and it takes you a minute to walk to your car or to leave the construction site, then you haven't been given the opportunity to take a 30 minute lunch. You have been provided a 29 minute lunch. And that is illegal under California law.
Thus, under California Labor Code Section 226.7, you're owed an hour's pay for each day.
Not getting paid overtime pay for construction workers
Under California law you are owed time and one half after you work 8 hours a day or 40 hours a week. Most California construction workers realize this. What a lot of workers don't realize is that they may be owed overtime pay and not know it.
For example, the painters in the case where they had to clean their paint brushes at home, had no idea that they were supposed to be paid for that time. And the construction workers that used nail guns had no idea that they were supposed to be paid for that time. In both instances, the workers contacted our office about some other wage violations. It was only after we did our unpaid wages analysis that we came to realize that they should have been paid for this time.
A case study: Overtime owed for cleaning up the construction job site on Friday afternoons
Let's talk about another example. In this case, the construction general contracting company would make the subs clean up the jobsite on Friday afternoons. it was a big industrial job site. Most of the workers would get off at 3:30 pm. Invariably, towards the end of the day, the general would make a push for the subs to "clean things up." The sub companies wouldn't want to pay overtime, so they would make their sub workers finish the site clean-up after 3:30 pm. Sometimes going well past 3:45.
Guess what? It was illegal not to paying the workers for this 5-10 and sometimes more than 15 minutes a week in unpaid time.
Just as in the the cases with the painters, carpenters, siders, and framers you must be paid for all the time that you work, are under any duties and/or under the control of the company. Any one of these three triggers the obligation that you be paid for this time under California law.
And, as I mentioned before, the unpaid wages paycheck stub violations, waiting time penalties and PAGA penalties usually add up to you being owed thousands and thousands of dollars.
How about the painters, framers, siders, carpenters in the previous case studies - are they owed overtime pay?
Yes, they are owed overtime pay for the time spent cleaning their brushes and/or maintaining their nail guns. However, remember, they are owed liquidated damages - that is double the minimum wage.
So, if you have worked over 8 hours in a day or 40 hours in a week - for the time we are claiming is unpaid - we would claim the higher of double the California minimum wage (liquidated damages) of time and one-half of your regular rate of pay.
Paycheck stub violations for California construction workers - $4,000 per employee
Under California law, even if you aren't paid a few minutes a week or paid an hour's pay for not getting meal breaks or rest breaks you are entitled to pay stub violations. California Labor Code Section 226. You can get up to $4,000 for each employee for pay stub violations.
Waiting time penalties for California construction workers - thousands and thousands of dollars
Under California law, you are entitled to 30 days pay if you aren't paid all of your wages at time of termination. That is, a day's wage for each day your pay is late, up to 30 days. California Labor Code Section 203.
For many California construction workers this is usually thousands and thousands of dollars alone for this California Labor Code violation. We have had cases where the workers are looking at well over ten thousands dollars for waiting time penalties.
Violation of California Wage Order 16 - Construction Workers/ Construction Industry
This case was about workers at a California construction company. There were under 50 current workers and about 25 former workers for the construction company. In this class action case we proved that the construction company violated provisions of Wage Order 16 - Construction.
Wage Order 16 - Section 6 - Records
"Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals, and total daily hours worked shall also be recorded. Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals, and total daily hours worked shall also be recorded."
Wage Order 16, Section 6(A)(1).
The company argued that since "operations ceased" for lunch times, that they didn't have to comply with this Section. However, we were able to show that some workers at the construction sites would routinely continue to work during meal periods (and take lunch later), when there was construction activities going on that the supervisors thought couldn't be stopped. In other words, all operations didn't cease every meal period, every day. Thus, the construction company had an obligation to record meal periods.
Under the Brinker case - in Justice Werdeger's concurring opinion, when an employer fails to record meal periods, then it is presumed that a meal period was not take:
"...if an employer's records show no meal period for a given shift, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided, shifting the burden to the employer to show the meal period was waived." Brinker vs. Superior Court (2012) 53 Cal.4th 1004, 1052.
I know the Brinker case very well, because I represented the workers in the Brinker case.
And, failure to keep proper records is a PAGA violation and you're entitled to PAGA penalties of $25 for the first violation and $50 for all subsequent violations per pay period, per employee. As with most PAGA penalties, you'll be surprised at how quickly they can add up to mean real money.
The company, of course, also argued that this is a small legal "technicality" and that they shouldn't have to follow this law. What you're going to see is that every time the company gets caught not following the law, that this is one of their favorite arguments.
Getting your unpaid wages class action settlement check - it makes it all worthwhile....
Failure to provide soap, other suitable cleansing agent and single use towels for hand washing - California PAGA violation
Why is Bill Turley asked to testify concerning wage law legislation at the California State Senate and the California Assembly?
A No B.S. straight-shooter lawyer
Failure to provide rest periods that comply with Wage Order 16 - Construction Industry
1. Relieves its employees of all duty,
2. Relinquishes control over their activities and
3. Permits them a reasonable opportunity to take an uninterrupted 10 minute break, and
4. Does not impede or discourage them from doing so. Or provide an incentive to forego.
Augustus v. ABM Security Services, Inc., 2 Cal. 5th 257, 265, (2016).
Failure to provide 10 minutes pay - for missed rest breaks
However, the employer shall make up the missed rest period within the same workday or compensate the employee for the missed ten (10) minutes of rest time at his/her regular rate of pay within the same pay period.
Are you playing chess or checkers? ... Or truth vs. the company's defenses?
Failure to pay an hour’s pay for missed rest breaks
Failure to provide legal meal breaks for construction workers
Over the years we have seen construction companies break California meal break laws. California workers rights to meal breaks comes down to the California Supreme Court case - Brinker vs. Superior Court. I represented the workers in the Brinker case, so I know all about winning meal break cases.
I talked about this more in an earlier section of this article.
Under California law, you're entitled to an hour's pay for every time a legal meal break isn't provided to you.
Am I supposed to be reimbursed when I pay for work materials - such as paint brushes, rollers, nail guns and the like?
Generally, under California law, you're supposed to be reimbursed for all business expenses. California Labor Code Section 2802. This includes construction materials, such as nails and paint. And construction safety equipment, such as a hard hat, safety goggles, ear plugs and gloves.
This also includes tool, such as paint brushes, spatulas, nail guns, hammers, saws, etc. However, there is an exception to this if you're paid twice the minimum wage. See below.
Do construction workers have to be paid double the minimum wage if the worker has to provide his own tools and equipment? ...I am a construction worker - do I have to be paid twice the minimum wage if the company does not supply my tools and equipment?
Yes.
Construction workers have to be paid twice the minimum wage (2 times the minimum) wage if they are required to provide and maintain hand tools and equipment customarily required by the particular trade or craft. California Wage Order 16 Section 8(B).
Pay stub violations
Waiting time penalties
Questions or if you need help right now?
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This article isn't legal advice
These discussions and/or examples are not legal advice. All legal situations are different. These testimonials, case results, endorsements, photos and/or discussions do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation. Every case is different. There are any number of reasons why class actions are not certified, not won and/or PAGA actions are not successful.
