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ABC Test to Help Determine if a Worker is to be Classified as an Independent Contractor or Employee

The legal standard used to determine whether a worker should be classified as an employee or a subcontractor is the “ABC test”. Under the ABC test, a worker is considered an employee unless the hiring entity can prove all three of the following conditions:

A) The worker is free from the control and direction of the hiring entity in performing the work, both under the contract and in fact. B) The worker performs work that is outside the usual course of the hiring entity’s business. C) The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

If a worker is misclassified as a subcontractor, the hiring entity may be liable for various consequences, including:

  • Unpaid overtime and minimum wage violations
  • Unpaid taxes and penalties
  • Liability for workers’ compensation insurance
  • Liability for unemployment insurance
  • Liability for failure to provide meal and rest breaks
  • Liability for discrimination and harassment claims

In addition, workers who have been misclassified as subcontractors may be entitled to recover damages for lost wages and benefits, and the hiring entity may face civil penalties and even criminal charges for violating the law.

It’s important for businesses in California to understand the legal consequences of misclassifying workers and to properly classify their workers to avoid any legal issues. If you’re unsure about the status of your workers, it’s always a good idea to seek the advice of a knowledgeable attorney.

In California, commissions are considered a form of compensation and must be included in the calculation of an employee’s regular rate of pay for purposes of determining overtime pay.

Under California law, non-exempt employees are entitled to overtime pay for all hours worked over 8 hours in a workday or 40 hours in a workweek, at a rate of 1.5 times their regular rate of pay. The regular rate of pay includes all forms of compensation, such as base pay, commissions, and bonuses.

If a non-exempt employee receives commissions, their overtime pay must be calculated based on their total earnings, including commissions, divided by the total hours worked. For example, if an employee earns $20 per hour in base pay and $10 per hour in commission pay, their regular rate of pay would be $15 per hour ($30 total earnings ÷ 2 hours worked). If they worked 10 hours in a workday, they would be entitled to 4 hours of overtime pay at a rate of 1.5 times their regular rate of pay ($22.50 per hour).

It’s important to note that California law provides greater protection to employees than federal law, so employers must comply with the higher standard that provides the most protection to workers. Employers should consult with a knowledgeable attorney or HR professional to ensure that they are in compliance with all applicable laws and regulations.

How do I calculate overtime pay when I receive an hourly wage and commission?

When you receive both an hourly wage and commission, your overtime pay is calculated based on the total amount you earn, including both your hourly wage and commission.

To calculate your overtime pay, you’ll first need to determine your regular rate of pay. This is calculated by dividing the total amount you earn in a workweek, including your hourly wage and commission, by the number of hours you worked in that week.

Once you have determined your regular rate of pay, you can then calculate your overtime pay. For hours worked in excess of 40 hours in a week, you are entitled to 1.5 times your regular rate of pay.

Here’s an example of how you might calculate your overtime pay:

Let’s say you earn an hourly wage of $15 and a commission of $200 in a workweek where you worked 45 hours.

To determine your regular rate of pay:

$15 (hourly wage) + $200 (commission) = $215

$215 ÷ 45 hours = $4.78 (regular rate of pay)

To determine your overtime pay:

5 hours (overtime) x $4.78 (regular rate of pay) x 1.5 = $35.85 (overtime pay)

So in this example, your overtime pay would be $35.85 for the 5 hours of overtime work you performed during the workweek.

It’s important to note that this is just an example and the specific requirements for overtime pay can vary depending on the laws and regulations of your jurisdiction, as well as any relevant collective bargaining agreements or employment contracts. If you have questions about how to calculate your overtime pay, I would recommend speaking with a local employment lawyer for more specific guidance.

California Law for in-home Caregivers

California has specific laws in place to protect the rights of caregivers. These laws provide caregivers with certain rights and protections, such as the right to overtime pay and meal and rest breaks. In this article, we will explore the key provisions of California’s caregiver laws.

Overtime pay for caregivers

In California, caregivers are entitled to overtime pay if they work more than 9 hours in a day or 45 hours in a week. Overtime pay is calculated at one and a half times the caregiver’s regular rate of pay. For example, if a caregiver earns $15 per hour, their overtime rate would be $22.50 per hour.

Meal and rest breaks

Caregivers are entitled to meal and rest breaks under California law. If a caregiver works more than 5 hours in a day, they must be provided with a 30-minute meal break. If the caregiver works more than 10 hours in a day, they must be provided with a second 30-minute meal break. In addition, caregivers are entitled to 10-minute rest breaks for every 4 hours worked.

Paid sick leave

Under California law, caregivers are entitled to paid sick leave. Caregivers accrue one hour of paid sick leave for every 30 hours worked. Caregivers can use their sick leave for their own illness or to care for a family member who is ill.

Worker’s compensation

Caregivers are also entitled to worker’s compensation if they are injured on the job. This includes coverage for medical expenses, lost wages, and disability benefits.

Anti-discrimination and retaliation protections

Caregivers are protected from discrimination and retaliation under California law. Employers cannot discriminate against caregivers on the basis of their race, gender, age, or other protected characteristics. Employers also cannot retaliate against caregivers who assert their rights under California law.


Caregivers in California have specific rights and protections under state law. These laws ensure that caregivers are fairly compensated for their work, provided with necessary breaks, and protected from discrimination and retaliation. If you are a caregiver in California and believe your employer is violating your rights, you should consult with an experienced employment law attorney.

California Law when Employers Require Employees to Supply Their own Tools

According to California Labor Law, employers must provide their employees with all the tools and equipment necessary to perform their job duties, unless the job is classified as a “hand tool” occupation. In hand tool occupations, such as mechanics, electricians, and plumbers, employees may be required to provide their own hand tools, but the employer must reimburse the employee for the reasonable cost of those tools.

However, if an employee chooses to use their own tools, the employer is not responsible for maintaining or insuring the tools, and the employee is not entitled to additional compensation for using their own tools. Additionally, employers are prohibited from deducting the cost of the tools from an employee’s wages or requiring the employee to purchase tools from the employer or a specific vendor.

Employers Failure to Accommodate an Employee with a Known Disability

Under California law, an employer has a duty to provide a reasonable accommodation to an employee with a disability, unless doing so would cause an undue hardship to the employer. An employer’s failure to provide a reasonable accommodation to a qualified employee with a disability may constitute disability discrimination.

If an employer fails to provide a reasonable accommodation, the employee may file a complaint with the Department of Fair Employment and Housing (DFEH) or file a lawsuit in court.

The employee may be entitled to damages, including back pay, lost benefits, and emotional distress damages, as well as injunctive relief requiring the employer to provide the requested accommodation.

It’s important to note that employees must notify their employer of their disability and request an accommodation in order to trigger the employer’s duty to provide an accommodation.

If an employee fails to request an accommodation, the employer may not be liable for failing to provide one.

What is the California law on Harassment in the Workplace

California law prohibits harassment in the workplace on the basis of a protected characteristic, such as race, color, religion, sex, gender, sexual orientation, national origin, age, or disability.

Harassment can include unwelcome conduct that is severe or pervasive, such as offensive jokes, slurs, name-calling, physical assault, or threats.

Under California law, both employers and employees can be held liable for harassment. Employers are required to take all reasonable steps to prevent harassment from occurring, including implementing effective policies and procedures for reporting and addressing harassment, conducting training for employees, and promptly investigating and remedying any complaints of harassment.

Employees who experience harassment in the workplace are encouraged to report it to their employer, following their employer’s reporting procedures. If the employer fails to take appropriate action to stop the harassment, the employee may file a complaint with the Department of Fair Employment and Housing (DFEH) or file a lawsuit in court.

In addition to damages for lost wages, emotional distress, and other harms, an employee who prevails in a harassment lawsuit may be entitled to injunctive relief, such as a court order requiring the employer to take steps to prevent future harassment.

Under California Law, what is Sexual Harassment?

Under California law, sexual harassment is a form of unlawful discrimination that includes unwelcome sexual advances, requests for sexual favors, or other verbal, physical, or visual conduct of a sexual nature that is severe or pervasive and creates a hostile work environment.

Sexual harassment can include a wide range of behaviors, such as unwanted touching, sexual jokes or comments, leering or staring, sending sexually explicit emails or text messages, or displaying sexually suggestive images in the workplace.

It’s important to note that sexual harassment does not have to involve physical contact or sexual activity to be considered illegal. The behavior must be severe or pervasive enough to create a hostile work environment or to result in a tangible employment action, such as a demotion or termination.

Both employers and employees can be held liable for sexual harassment under California law. Employers have a legal duty to take all reasonable steps to prevent and promptly address sexual harassment in the workplace, including implementing effective policies and procedures for reporting and addressing harassment, conducting training for employees, and promptly investigating and remedying any complaints of harassment.

Under California Law, what is Wrongful Termination

Under California law, wrongful termination occurs when an employer terminates an employee for an illegal reason or in violation of public policy. This means that an employer cannot terminate an employee in retaliation for engaging in a protected activity, such as reporting illegal activity or discrimination, filing a complaint with a government agency, or taking a leave of absence for a qualifying reason, such as a serious medical condition or to care for a family member.

Wrongful termination can also occur when an employer violates an employee’s employment contract, including a written or implied contract, or violates the implied covenant of good faith and fair dealing, which requires employers to act in good faith and deal fairly with their employees.

If an employee believes they have been wrongfully terminated, they may be entitled to bring a claim against their employer for damages, including lost wages, emotional distress, and other harm caused by the termination. In some cases, an employee may be entitled to reinstatement to their former position.

It’s important to note that California is an at-will employment state, which means that employers can terminate employees for any reason, as long as it’s not an illegal reason or in violation of public policy. However, proving wrongful termination can be a complex legal matter and requires an analysis of the specific facts and circumstances of each case.

Under California Law, what is an “Alternative Work Week Schedule?”

Under California law, an alternative workweek schedule (AWS) is a flexible work arrangement that allows eligible employees to work longer hours in a day, but fewer days in a workweek, without incurring overtime pay. An AWS must be established through a proper election process and meet certain legal requirements.

To establish an AWS, the employer must first obtain the approval of at least two-thirds of the affected employees in a secret ballot election. The AWS must specify the number of days in the workweek, the number of hours in the workday, and the length of the meal period, which must be at least 30 minutes for a workday of more than five hours.

Under an AWS, employees can work up to 10 hours per day within a 40-hour workweek without incurring overtime pay. However, if an employee works more than 10 hours in a day, they must be paid overtime for all hours worked in excess of 10. Additionally, if an employee works more than 40 hours in a workweek, they must be paid overtime for all hours worked in excess of 40.

It’s important to note that an AWS is not mandatory and employers are not required to offer this option to their employees. Additionally, some industries or occupations may be exempt from the

AWS requirements, so it’s important for both employers and employees to consult with an employment law attorney to ensure compliance with the law.

Why Wage And Hour Law?


Employment law can be complicated. However, if you feel that your employer owes you wages, then we want to hear from you. It’s that simple. To learn more about wage and hour class actions, and the other legal services we provide, call 855-924-3489. You may also contact us online to schedule an appointment.


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