A Quick Look at California Part-Time Employment
Overview of California Part-Time Employee Laws
As there is no formal definition for part-time employment in California, a consensus has developed in private sector workplace practices that hours that fall below 35-40 hours a week with a set weekly schedule can be categorized as part-time. A related—but slightly different—meaning of part-time is employment that is less than 35 hours per week. When evaluating whether an employee is part or full-time, an employer should also consider common industry standards as these may impact contractual obligations and affect employee benefits programs. While there is no specific designation for part-time versus full-time in California law, part-time employment is generally understood to refer to a position with less than 40 hours of work per week. These part-time workers are generally paid on an hourly or abbreviated salaried basis , tend to receive smaller wages and fewer benefits when compared with full-time positions, and tend to have less job-specific responsibilities.
Part-time status does not necessarily translate to part-time hours. Many part-time, non-exempt employees work more hours in a week than typical part-time employees, and some part-time employees work full time hours. Similarly, full-time employees can work fewer hours and still be considered full-time. The risk that an employer may expose itself to from misclassifying its employees as part-time is that the employer may inadvertently violate the laws that were designed to protect part-time employees’ rights and privileges, leaving the employer open to litigation.
Pay and Overtime Rules
For all California employees, the state requires that employers pay at least the minimum wage. As of the writing of this article, the statewide minimum wage is $15 an hour. Once the majority of minimum wage increases required under California law have taken effect, it will be a number of changes going forward, creating different minimum wages for large and small companies, and also for those who work in the Bay Area. Therefore, the best course may be to review the California Department of Industrial Relations wage tables periodically.
Part-time workers are eligible for overtime when they have worked more than 40 hours in a week or more than eight hours in one day. However, when these hours are met, part-time employees have the same rate of pay for this extra work as full-time employees do. This is not always the case for other benefits such as sick leave or vacation, which many part-time workers do not get.
California law also has additional provisions for part-time workers who are paid on a piece-rate basis, such as those who sort and package crops. If these workers are not paid an hourly wage, then the overall earnings for the week should be divided by the hours worked, and their pay for any time the law requires them to be on-call, or working away from their "piece" work, should be paid at the statutory minimum wage for the hours they were required to be on call or were working for the employer. If the total pay is less than California minimum wage, the difference should be added to the employee’s paycheck.
Benefits and Time Off for Part-Time Staff
While part-time employees in California do not have access to paid sick leave, certain benefits and rights apply to their employment. For instance, part-time employees may have access to workplace benefits. If an employer provides the benefit to a full-time employee, the part-time employee may reasonably expect to receive the same benefit on a prorated or proportional basis. California law contemplates that part-time employees will accrue paid vacation days and PTO as earned. An employer that provides employees vacation days as part of their benefits package may not take away the benefits accrued during employment. Additionally, employees’ accrued vacation time is fully vested, which means that when individuals leave their employment, whether voluntarily or involuntarily, they are entitled to receive payment for the hours they worked that have accrued paid vacation time. Also, there is a possibility paid time off (PTO) plans may contain provisions regarding the accrual of time, rollover and cash out of unused time, timing of payment, and awarding of PTO and/or sick leave as a part of a bonus and as severance pay. Paid time off (PTO) is another term for paid sick leave. PTO is normally offered in a lump sum or equally accrued at the beginning of each pay period and can be taken for any reason. Companies in California are required by law to provide all employees a minimum amount of sick leave per pay period, which must be paid out upon termination of employment. In contrast, PTO must be paid out if accrued, but an employer has the choice to offer employees the option to cash out accrued sick leave, if any. Part-time employees may be entitled to certain types of leave under California Employment Law, including:
The CFRA and FMLA allow eligible employees to take up to 12 work weeks in a 12-month period for a number of reasons, including the birth or care of a child, adoption, foster care, serious health condition of an employee, spouse, child, parent, grandparent, grandchild, sibling, and achieving certain military family priorities. Under the CFRA, employers must maintain health care coverage for workers on leave. On the other hand, the FMLA does not require employers to maintain health care during workers’ leave. Both laws, however, entitle workers to return to the same or comparable position following their leave. To be eligible for the CFRA and the FMLA, an employee must have been working for an employer for at least 12 months and at least 1250 hours during the 12-month period preceding the leave. It is common for part-time employees to be eligible for CFRA and FMLA coverage. Employers are prohibited from discharging or discriminating against employees that avail themselves of the protection provided by these acts.
Legal Protections Against Favoritism
California part-time employees enjoy the same legal protections against employment discrimination as all other workers. While part-timers may experience discrimination because of their employment status, an employer’s discriminatory employment practices cannot take place under California or federal law.
Employment and Labor Laws Do Not Discriminate
California labor and employment laws do not discriminate between part- and full-time employees. Those laws cover part-timers under the same laws protecting full-time workers to prohibit discrimination based on:
If a part-time worker shows that an employment practice adversely affected a protected group, they may have cause for a discrimination claim. An employer cannot avoid this by restricting the claim to only full-time staff. As the U.S. Supreme Court noted in 1993, "there can be no separate but unequal employment practices for part-time and full-time workers," citing state and federal employment and labor laws that do not draw an exception for part-time employees and operatives.
Part-Time Employment Exclusions Are Rare
While broadly prohibited, there are rare exceptions where part-time employment practices can differ from full-time practices. One is hire and fire practices. A part-time employee who has not been with a company long enough to accrue tenure protection can be terminated without recourse.
Also, in certain employment situations, such as commodity salespeople, a part-time employee may be required to be available for work if called upon—such as being on call—for certain hours. If not, the employer may state they are voluntarily working part-time and subjected to different work arrangements than full-time employees.
Part-Time Workers Can Defend Their Rights
Part-time employees can protect their rights from workplace discrimination by keeping records of practices affecting how they perform their jobs. This includes their input into decision-making processes that lead to those practices. Part-timers should also keep copies of their employment agreements and any policies that the employer told them they would forfeit if not working full time.
When discrimination practices occur towards part-time employees, they must seek to address the situation with their employer. If not, they may have an actionable claim for wage and hour violations, wrongful termination and other California employment law claims when they have preserved evidence of that discrimination.
Work Hours and Flexibility for Part-Time Positions
There is no legal requirement for employers to offer scheduling or flexibility for part-time employees. However, California employers that offer employees a set shift may be required to provide advance notice of any changes to the employee’s scheduled shift.
Most California employers are not required to offer their employees set shifts. But if they do, then employees must receive at least 7 days’ notice of any shift change (or shift removal). See Labor Code Section 10. See 10 Cal. Admin. Code 11070(5)(F).
California law does not require employers to pay a reporting time change penalty if a shift is removed. The law also does not require employers to pay employees for schedule changes . The only requirement is 7 days’ notice.
There is generally no requirement for California employers to provide employee preference when it comes to scheduling. Thus, (a) you cannot necessarily select your own shift and (b) there is no order of preference—i.e., senior employees, parents, single parents, caretakers, women, etc.—in terms of scheduling.
As with any expectation or preference, California employers are generally free to provide whatever preference policies they want. For instance, an employer might give preference to mothers in scheduling. However, this is not a requirement. An employer is generally free to provide a lack of preference if they want to.
How FLSA Impacts California Part-Time Workers
Employers in California must be cautious in how they classify and treat part-time employees. Such workers should be treated fairly and equitably, and without regard to biases based on their part-time status. Specific state laws, even relevant federal laws, apply differently to part-time employees. Certain state laws even provide part-time employees with additional rights.
Part-time workers may be entitled to receive the same pay and benefits and protections as full-time employees. For example, the Fair Employment and Housing Act (FEHA) of the California Government Code prohibits discrimination against an employee in any term or condition of employment based on a number of protected classes, such as religion, race, color, pregnancy, and disability, among others. FEHA gives an employee with a part-time or temporary position the same protections as an employee in a permanent status. Thus, an employee in a part-time position who experiences a workplace injury comparable to an injury experienced by a full-time employee in a permanent position may be entitled to the same compensation as a full-time employee.
Employers must also be aware of recent developments in relevant law that apply to part-time employees. For example, the New Parent Leave Act (NPLA) was signed into California law in 2017 and took effect on January 1, 2018. The NPLA allows eligible employees who are employed by an employer with at least 20 employees within a 75-mile radius to take up to 12 weeks of unpaid leave to care for a newborn child, a newly adopted child, or a foster child. An individual working in a part-time position who otherwise meets the eligibility requirements under the NPLA may take such leave.
What to Do When You’re Treated Unfairly
If your rights have been violated as a part-time employee in California, the first step you should take after confirming your suspicions is to document the specific ways in which the employer has failed to meet its legal responsibilities. For example, you can document how your employer has required you to work through a lunch break without paying you or failing to pay you for overtime hours.
Next, do your best to secure evidence of your employer’s failure to meet its legal responsibilities. Such evidence could be anything from documentary evidence, such as work schedules, payroll stubs and emails, to witness testimony from fellow employees who are also working for the company in question.
Once you’ve collected this evidence, consider approaching a supervisor to ask for a resolution or at least explain the issue you’re experiencing. This will perhaps eliminate any need to take legal action down the road if the issue is resolved promptly .
As a general rule, your employer is not legally obligated to accommodate you in any respect if you are classified as exempt. They are only required to comply with rules and regulations regarding breaks, wages, overtime and pay periods if you are non-exempt.
If you’ve taken all these steps and continue to experience issues, it’s time to contact the state labor boards in charge of ensuring compliance with employment laws. You can start by contacting the California Division of Labor Standards and Enforcement. This agency provides contact information and resources for employees who are seeking information, assistance or to file a formal complaint related to wage theft, discrimination or sexual harassment, among other things.
If an employer fails to pay owed wages, overtime or commission, you may submit a form for non-payment of wages either online or by mail. You may also file a complaint about unpaid overtime or meal and rest breaks.