Both state and federal laws require employers to follow certain rules—like paying overtime, tracking hours, or providing rest and meal breaks. Some types of jobs, however, are exempt from these requirements.

An exempt employee is someone who occupies a job that is not subject to one or more sets of wage and hour laws. Their rights can differ in significant ways from nonexempt employees.

This article provides an overview of California’s employment laws, and explains which employees are exempt from certain important rights.

The Legal Background

Image Illustrating Employment Wage and Hour Laws

To understand whether an employee should be classified as exempt or nonexempt, it is helpful to know the applicable laws.

In California, employees are protected by two main sets of laws that control wages:

  • The federal Fair Labor Standards Act,1 and
  • California’s Labor Code.

Both sets of laws have regulations that provide guidance on how they should be applied.2

State and federal wage and hour laws are often similar, but not identical. Usually, for example, California law protects employee rights to a greater extent than federal laws.

In situations where state and federal law are not the same, California employers are required to follow the standard that is more beneficial to employees.3

This means that most California employers are required to apply the wage or hour laws most favorable to the employee.4

Rights of Nonexempt Employees

Nonexempt Employee Rights

Nonexempt employees have important rights that exempt employees do not have.

Minimum Wage Rights

Federal law requires employers to pay nonexempt employees a minimum wage of $7.25 per hour.5 Fortunately, California state law is more favorable to employees than in this context.

California law requires nonexempt employees that work for an employer with 25 or fewer employees to be paid a minimum of $10.00 per hour.6 Employees that work for an employer with more than 25 employees are entitled to be paid $10.50 per hour, as of January 1, 2017.7

Certain cities and counties have established a minimum wage higher than the statewide minimum wage. San Francisco, for example, has established a $13.00 per hour minimum wage for businesses within the city’s geographical boundaries.8

Work Hours and Overtime Rights

Federal law requires employers to pay nonexempt employees an overtime rate of at least one-and-one-half times their regular hourly wage for each hour worked in excess of 40 during a workweek.9

Again, California law protects nonexempt employees to a greater degree than federal law.10

California’s overtime law requires employers to pay nonexempt employees one-and-a-half times their regular hourly rate of pay for:

  • All hours worked in excess of 8 in a single workday,
  • All hours worked in excess of 40 in a single workweek, and
  • The first 8 hours worked on the seventh consecutive day of work in the workweek.11

California employers are required to pay nonexempt employees twice their regular hourly rate of pay for:

  • All hours worked in excess of 12 in a single workday, and
  • All hours worked in excess of 8 on the seventh consecutive day of work in the workweek.12

Meal Break Rights

Nonexempt employees in California are entitled to an unpaid, 30-minute meal break if they work more than 5 hours in a day.13 A second meal break is required if employees work more than 10 hours in a day.14

Employees can agree to waive the first meal break if they do not work more than 6 hours in a day.15 They can agree to waive the second meal break if they do not work more than 12 hours in a day, and the first meal break was not waived.16

During the meal break, the employee must be relieved of all responsibility and be free to leave the work premises. If the employee is required to remain on the employer’s premises or job site, the employee must be paid for the meal break.17

When employers fail to provide an employee a meal break, they are required to pay the employee an extra one hour of pay at the employee’s regular hourly rate. The employee may only earn one extra hour per workday for their employer’s failure to provide them with missed meal breaks.18

Rest Period Rights

Nonexempt employees in California are also entitled to take a paid 10-minute rest period during the middle of each 4-hour work period.19

Employees are not entitled to a rest period if they work less than 3.5 hours in the work day.20

When employers fail to provide an employee a rest period, they are required to pay the employee an extra one hour of pay at the employee’s regular hourly rate. The employee may only earn one extra hour per workday for their employer’s failure to provide them with missed rest period.21

Employers must also provide reasonable breaks must also be provided to lactating mothers who want to express breast milk for their children.22

Lactation breaks must be paid if they are taken during the employee’s regular rest period. They do not need not be paid to the extent that they last longer than, or are in addition to, the regular rest period.23

Determining Whether an Employee is Exempt

Nonexempt Employee Rights

Several classes of employees are exempt from many of California’s wage and hour laws.

Certain employees are exempt from California and federal laws governing minimum wage, overtime, work hours, meal breaks, and rest periods.24

Employers are only entitled to claim an exemption when an employee “plainly and unmistakably” meets the standard required for the exemption.25 When doubt exists, the law generally requires the employee to be classified as nonexempt.

The most common exemptions apply to executive, administrative, and professional employees.26

Under the federal Fair Labor Standards Act (FLSA), three tests must be satisfied before an employee in one of those categories can be classified as exempt. California law generally parallels the FLSA, although a few differences are noted below.27

The Requirement of a Salary

Exempt employees must be paid a salary, rather than an hourly wage.28 The salary must be paid regardless of hours worked or the quality of the work performed.29 This requirement is sometimes called the salary basis test.

In California, if pay is based on the number of hours worked with no minimum guarantee, the employee will be regarded as receiving hourly pay regardless of earnings and cannot be classified as exempt.30

In calculating the employee’s salary, deductions may be made for full-day absences due to illness, disability, personal leave, or disciplinary suspension, but salary deductions for partial-day absences will cause an employee to be classified as nonexempt.31

The Minimum Salary for Exempt Employees

Both state and federal law require that employees earn a minimum salary before they can qualify as exempt. This is sometimes called the salary level test.

Federal Minimum Salary

Under the FLSA, exempt employees must be paid at least $455.00 per week.32 This salary level, however, may be changing soon.

The Department of Labor recently enacted a rule that increased the minimum salary to $916 per week, effective December 1, 2016.33 But a federal district court decided that the Department exceeded its authority and therefore issued a preliminary injunction against implementation of the increase.34 So the increase has not gone into effect quite yet.

Regulations that implement the FLSA provide that certain “highly compensated” employees may routinely be regarded as exempt, without a detailed analysis of their duties, if their primary duties involve office or nonmanual work.

If the new rule discussed above takes effect, an employee who earns at least $134,004.00 per year will be regarded as highly compensated. If that rule does not take effect, a highly-compensated employee is one who earns at least $100,000.00 per year.35

California’s Minimum Salary

The salary level test under California law is a little different. Rather than providing for an exact number, California law requires the employee to be paid a monthly salary of at least twice the state minimum wage for full-time employment to qualify as exempt.36

For the purposes of the salary level test, full-time employment is defined as a 40-hour workweek.37

If the applicable minimum wage is $10.00, the minimum salary is $800.00 per week. If the applicable minimum wage is $10.50, the minimum salary is $840.00 per week.

Since California’s minimum salary is more favorable to employees than the FLSA (unless the higher federal minimum salary takes effect), California law applies to most employees when determining whether a California employee meets the salary level test.

The White Collar Duties Requirement

Assuming the employee’s pay satisfies the salary basis and salary level tests, the employee’s job must consist of specified duties in order to qualify as exempt. The exact duties depend on the job category under which the exemption is claimed.38

There are three basic categories of white collar jobs that might meet the duties test:

  • Executive employees,39
  • Administrative employees,40 and
  • Professional employees.41

Importantly, courts look at which duties the employee actually performs, regardless of job title or how the job is defined in a position description.42

The duties test focuses on the employee’s primary duty. A primary duty need not be the employee’s only duty, but it must be the employee’s most important duty.43

California law requires an employee to devote more than half of his or her working hours to the primary duty in order to satisfy the duties test.44

California’s more-than-half standard is more favorable to employees than the federal FLSA standard and must therefore be applied when deciding whether a California employee can be classified as exempt.

Executive Employees

To satisfy the duties test, executive employees must:

  • Engage in the primary duty of management of the business or one of its departments;
  • Regularly direct the work of two or more other employees; and
  • Have the authority to hire and fire employees, or to make recommendations about hiring, firing, promotions, and wages that are given particular weight.45

Management includes such activities as hiring, firing, training, supervising, and disciplining employees; making work assignments; resolving employee grievances; maintaining production or sales records; ordering materials or inventory; and planning a budget.46

Executive employees receive little direct supervision.

Administrative Employees

To satisfy the duties test, administrative employees must:

  • Perform, as a primary duty, office or nonmanual work directly related to management or general business operations; and
  • In connection with that primary duty, exercise discretion and independent judgment concerning significant decisions.47

Work relates to management or general business operations when the employee assists in running the business.48

Secretaries, store clerks, bookkeepers, and lead operators on production lines cannot be classified as administrative employees because they do not help run the business.

Examples of duties that relate to management or general business operations include responsibility for marketing, research, budgeting, finance, accounting, purchasing, quality control, human resources, labor or government relations, regulatory compliance, and database administration.49

An employee exercises discretion and independent judgment when the employee makes and implements important choices after considering competing courses of action.50

An employee’s judgment is independent when it is free from immediate direction or supervision, even if an employee who is higher in the management chain has the authority to override the decision.51

Professional Employees

There are three types of professional employees that can qualify for exemptions:

  • Licensed Professionals. People who are licensed or certified by the State of California and are primarily engaged in the practice of: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting.52
  • Learned Professionals. People who have advanced knowledge in a field of science or learning that is customarily acquired by prolonged and specialized study.53
  • Creative Professionals. People who focus on invention, imagination, originality, or talent in a recognized field that is artistic or creative.54

Doctors, lawyers, and engineers are obvious examples.55 Most actors, writers, artists, and musicians are exempt as creative professionals, provided they meet the salary tests.

The professional employee exemption is fact-specific and depends upon the nature of the work that the employee primarily undertakes.

Other Classifications

Computer professionals can be classified as exempt if their primary duty consists of tasks related to systems analysis, programming, or software engineering.56

Most IT support professionals, as well as employees who manufacture or repair computers, are not exempt.57

Outside salespersons are exempt if their primary duty is to make sales and they regularly work away from the employer’s place of business.58

A handful of other occupations are exempt from minimum wage and overtime laws.59 And some occupations, including live-in domestic helpers and taxi drivers, are exempt from overtime laws, but not minimum wage.60

Immigration & Nonresident Status

An employee’s immigration status has no effect on their right to be paid a minimum wage or to receive overtime compensation under California law.61

Likewise, employees that are not residents of the State of California will still have the right to pursue relief under California law if the work was performed in this state.62

Union Employees

Union employees are sometimes exempt from California’s overtime laws.63 This exemption, however, is only a partial one.

The union employees must still be employed under a collective bargaining agreement that expressly provides for the wages, hours of work, and working conditions of the employees.64

The collective bargaining agreement must also provide premium wage rates for all overtime hours worked and a regular hourly rate of pay of at least 30 percent more than the state minimum wage.65

Only Employees Are Protected

Employer Deciding How to Classify an Employee

Employees have important rights that non-employees do not have.

As explained above, nonexempt employees receive protections that exempt employees do not. To receive the protections of a nonexempt employee, the worker must meet the legal definition of employee.

The precise meaning of the word “employee” depends on whether state or federal law is applied.

“Employee” Defined Under Federal Law

The federal Fair Labor Standards Act (FLSA) broadly defines an “employee” as someone who engages in, or is permitted to engage in, work for an employer.66

For these purposes, a person will be an employee even if they performing work for agents of an employer. Agents are people who act directly or indirectly in the interest of an employer in relation to an employee.67

The FLSA’s definition of “employee” does not include certain employees of public agencies, immediate family members, and volunteers.68

Additionally, employees are not necessarily covered by the FLSA if they work for a business that generates an income of less than $500,000 per year and does not engage in interstate commerce.69

“Employee” Defined Under California Law

California’s state law is a bit more complicated. California’s Labor Code does not expressly define what it means to be an employee for these purposes.70

Instead, depending on the context, California courts rely on either: the interpretation of California regulatory agencies or past California cases.71

When California’s regulations govern, California law largely mirrors the definitions provided by the FLSA.72 The main difference is that the term employer is broader, and includes people who exercise control over the wages, hours, or working conditions of any person.73

When courts rely on case law to interpret the word “employee,” they look primarily at whether the person or business that hired the worker has the right to control the way the worker accomplishes their work.74

If the employer does not control the way the worker accomplishes their work, the worker might be characterized as an independent contractor, in which case their rights are mostly dictated by their service contract.

California courts will also sometimes weigh a number of factors to decide whether a worker is an employee or independent contractor.75

Risks of Misclassification

Employers sometimes misclassify nonexempt employees as exempt. In doing so, they are seeking to avoid paying overtime wages or other required payments (like FICA payments) by deliberately misclassifying employees.

The misclassification might be accidental or purposeful. Whatever the case, it will usually cause confusion about how the applicable tests should be applied.

An employee who was deprived of overtime pay because of a misclassification can seek back pay for the unpaid overtime wages the employee earned. When the misclassification was willful, federal law permits the employee to seek up to double the unpaid amount as a penalty for the employer’s unlawful behavior.76

California state law is more limited than federal law in this context. California law does not make double damages available for willful violations, but it does make certain penalties available for the delay in paying wages.77

Deadlines

Deadline to File a Nonexempt Misclassification Claims

When an employer fails to properly classify their employee as nonexempt, employees must file a claim against their employer within a certain period of time. This legal deadline is called a statute or limitations.

The General Rule

Employees usually have three years in which to make a wage claim under California law.78

The clock begins to run at the time the wages first become legally due. Usually, wages first become due on the regular payday for the pay period in which the employee performed the work.79

When the work is continuing and the employee is paid periodically (e.g., weekly or monthly) a separate and distinct cause of action accrues on each payday, triggering on each occasion the running of a new period of limitations.80

Exceptions

Employees wishing to pursue certain types of claims may face a shorter deadline. A claim for the breach of an oral contract must be filed within two years.81

A claim seeking statutory penalties may also face a short deadline. The law is somewhat unsettled, but some penalties for the late payment of wages may be subject to a one-year statute of limitations.82 Other penalties, however, are subject to the normal three-year statute of limitations.83

In some cases, a claim for unpaid wages (but not penalties) can be pursued as late as four years after the claim began to accrue. To take advantage of this longer statute of limitations, the employee must be filing their claim based on a breach of a written contract.84

Alternatively, the employee might be able to claim the failure to pay their wages was an unlawful business practice under California’s Unfair Competition Law.85 This is sometimes another way for an employee to access a four-year statute of limitations, but the remedies can be limited.86

Federal Cases

Employees can usually seek back pay for overtime wages earned during the two years prior to making a wage claim. Federal law extends that time to three years if the misclassification was willful.87

Conclusion

Employment law can be complicated. It can be a good idea for employees to have an employment attorney assist them in pursuing relief.

In fact, employers are often required to compensate employees for the cost of their attorney’s fees. So there might be very little reason to delay contacting a lawyer.

If you think you have been the victim of employment misclassification, protect yourself and call the work lawyers of Smith & Lo at (310) 997‑2409 to learn more about your legal options.


  1. 29 U.S.C. §§ 201–219.

  2. 29 C.F.R. §§ 541.0–541.710 [federal regulations governing exemptions]; Cal. Code of Regs., tit. 8, §§ 11010–11538 [California regulations adopted by the Industrial Welfare Commission].

  3. 29 U.S.C. § 218; Aguilar v. Association for Retarded Citizens (1991) 234 Cal.App.3d 21, 34 [“[F]ederal law does not control unless it is more beneficial to employees than the state law.”]; see also Pacific Merchant Shipping Ass’n v. Aubry (9th Cir. 1990) 918 F.2d 1409, 1419 [finding that the FLSA did not preempt states from enforcing more protective overtime laws than federal law]; Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 795 [“The FLSA explicitly permits greater employee protection under state law.”].

  4. 29 C.F.R. § 778.5 [“Various Federal, State, and local laws require the payment of minimum hourly, daily or weekly wages different from the minimum set forth in the Fair Labor Standards Act, and the payment of overtime compensation computed on bases different from those set forth in the Fair Labor Standards Act. Where such legislation is applicable and does not contravene the requirements of the Fair Labor Standards Act, nothing in the act, the regulations or the interpretations announced by the Administrator should be taken to override or nullify the provisions of these laws. Compliance with other applicable legislation does not excuse noncompliance with the Fair Labor Standards Act. Where a higher minimum wage than that set in the Fair Labor Standards Act is applicable to an employee by virtue of such other legislation, the regular rate of the employee, as the term is used in the Fair Labor Standards Act, cannot be lower than such applicable minimum, for the words ‘regular rate at which he is employed’ as used in section 7 must be construed to mean the regular rate at which he is lawfully employed.”].

  5. 29 U.S.C. § 206(a)(1)(C).

  6. Labor Code, § 1182.12, subds. (a).

  7. Labor Code, § 1182.12, subds. (b)(1).

  8. San Francisco Admin. Code § 12R.4.

  9. 29 U.S.C. § 207.

  10. Labor Code, § 510.

  11. Labor Code, § 510, subd. (a) [“Eight hours of labor constitutes a day’s work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee.”]; see also Labor Code, §§ 511, 514, 515.

  12. Labor Code, § 510, subd. (a) [“Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee.”].

  13. Labor Code, § 512, subd. (a) [“An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.”]; Cal. Code of Regs., tit. 8, § 11050, subd. (11).

  14. Labor Code, § 512, subd. (a) [“An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.”].

  15. Labor Code, § 512, subd. (a).

  16. Labor Code, § 512, subd. (a).

  17. Cal. Code of Regs., tit. 8, § 11050, subd. (11)(A) [“Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an ‘on duty’ meal period and counted as time worked. An ‘on duty’ meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.”].

  18. Cal. Code of Regs., tit. 8, § 11050, subd. (11)(B) [“If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.”].

  19. Cal. Code of Regs., tit. 8, § 11040, subd. (12)(A) [“Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. . . . Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”].

  20. Cal. Code of Regs., tit. 8, § 11040, subd. (12)(A) [“[A] rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours.”].

  21. Cal. Code of Regs., tit. 8, § 11040, subd. (12)(B) [“If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.”].

  22. Labor Code, § 1030 [“Every employer, including the state and any political subdivision, shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child.”].

  23. Labor Code, § 1030 [“The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission shall be unpaid.”].

  24. See 29 U.S.C § 213 [federal exemptions]; Cal. Code of Regs., tit. 8, § 11040, subd. (1)(A).

  25. Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 562 [“Exemptions are narrowly construed against the employer and their application is limited to those employees plainly and unmistakably within their terms.”]; Arnold v. Ben Kanowsky, Inc. (1960) 361 U.S. 388, 392 [80 S.Ct. 453, 456] [“We have held that [FLSA] exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.”].

  26. 29 U.S.C. § 213(a); Cal. Code of Regs., tit. 8, § 11040, subd. (1)(A).

  27. See Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 795 [“The IWC’s wage orders, although at times patterned after federal regulations, also sometimes provide greater protection than is provided under federal law in the Fair Labor Standards Act (FLSA) and accompanying federal regulations.”].

  28. 29 C.F.R. § 541.600(a) [“To qualify as an exempt executive, administrative or professional employee under section 13(a)(1) of the Act, an employee must be compensated on a salary basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities.”]; see also Cal. Code of Regs., tit. 8, § 11040 [providing that, for each exempted category, the employee must earn “a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment”].

  29. 29 C.F.R. § 541.602(a) [“An employee will be considered to be paid on a ‘salary basis’ within the meaning of this part if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.”].

  30. Negri v. Koning & Associates (2013) 216 Cal.App.4th 392, 400.

  31. 29 C.F.R. § 541.602(b)(2) [federal law]; Conley v. Pacific Gas & Elec. Co. (2005) 131 Cal.App.4th 260, 271 [“[N]othing in California law that precludes employers from following the federal rule that permits them to require the use of vacation leave for partial-day absences without causing otherwise exempt employees to become nonexempt under the salary basis test.”].

  32. 29 C.F.R. § 541.600(a).

  33. Amount of Salary Required, 81 Fed. Reg. 32,550 (May 23, 2016) (to be codified at 29 C.F.R. § 541.600).

  34. Nevada v. United States Dep’t of Labor (E.D.Tex. Nov. 22, 2016, Civil Action No. 4:16-CV-00731) 2016 U.S.Dist.LEXIS 162048 [order granting preliminary injunction].

  35. 29 C.F.R. § 541.601.

  36. Labor Code, § 515, subds. (a)(c).

  37. Labor Code, § 515, subd. (c).

  38. See 29 C.F.R. § 541.601(a)(2) [“An employee shall be exempt under section 13(a)(1) of the Act if: . . . (2) .The employee customarily and regularly performs any one or more of the exempt duties or responsibilities of an executive, administrative or professional employee identified in subpart B, C, or D of this part.”]; Labor Code, § 515, subd. (a) [“The Industrial Welfare Commission may establish exemptions from the requirement that an overtime rate of compensation be paid pursuant to Sections 510 and 511 for executive, administrative, and professional employees, if the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.”].

  39. 29 C.F.R. § 541.100 [defining executive employees].

  40. 29 C.F.R. § 541.200 [defining administrative employees].

  41. 29 C.F.R. § 541.300 [defining professional employees].

  42. 29 C.F.R. § 541.2.

  43. See 29 C.F.R. §§ 541.100(a)(2), 541.200(a)(2), 541.300(a)(2).

  44. Labor Code, § 515, subd. (e) [“For the purposes of this section, ‘primarily’ means more than one-half of the employee’s worktime.”].

  45. 29 C.F.R. § 541.100 [defining executive employee under the federal FLSA]; Cal. Code of Regs., tit. 8, § 11040, subd. (1)(A)(1) [defining executive employee under California law].

  46. 29 C.F.R. § 541.102.

  47. 29 C.F.R. § 541.200 [defining administrative employee under the federal FLSA]; Cal. Code of Regs., tit. 8, § 11040, subd. (1)(A)(2) [defining administrative employee under California law].

  48. 29 C.F.R. § 541.201(a).

  49. 29 C.F.R. § 541.201(b).

  50. 29 C.F.R. § 541.202(a) [“In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered.”].

  51. 29 C.F.R. § 541.202(c) [“The exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision. However, employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level.”].

  52. Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. (3)(A).

  53. Cal. Code of Regs., tit. 8, §§ 11010–11150, subds. (3)(B).

  54. 29 C.F.R. § 541.300 [defining professional employee under the federal FLSA]; Cal. Code of Regs., tit. 8, §§ 11010–11150, subd. (1)(A)(3) [defining professional employee under California law].

  55. Cal. Code of Regs., tit. 8, § 11010(1)(A)(3) [listing licensed professionals who are exempt].

  56. 29 C.F.R. § 541.400(b).

  57. 29 C.F.R. § 541.401.

  58. 29 C.F.R. § 541.500

  59. Those occupations are listed in 29 U.S.C. § 213(a).

  60. Those occupations are listed in 29 U.S.C. § 213(b).

  61. Labor Code, § 1171.5, subd. (a) [“All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.”].

  62. Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191, 1206 [“The California Labor Code does apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs in the circumstances of this case, such that overtime pay is required for work in excess of eight hours per day or in excess of 40 hours per week.”].

  63. Labor Code, § 514.

  64. Labor Code, § 514.

  65. Labor Code, § 514.

  66. 29 U.S.C. § 203(e)(1) [“[T]he term ’employee’ means any individual employed by an employer.”]; Nationwide Mut. Ins. Co. v. Darden (1992) 503 U.S. 318, 326 [“While the FLSA, . . . defines an ’employee’ to include ‘any individual employed by an employer,’ it defines the verb ’employ’ expansively to mean ‘suffer or permit to work.’ . . . This latter definition, whose striking breadth we have previously noted, . . . stretches the meaning of ’employee’ to cover some parties who might not qualify as such under a strict application of traditional agency law principles.”]; see also 29 U.S.C. § 203(g) [“‘Employ’ includes to suffer or permit to work.”].

  67. 29 U.S.C. § 203(d) [“‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.”].

  68. See 29 U.S.C. § 203(e).

  69. 29 U.S.C. § 203(s).

  70. Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 10 [“the Labor Code does not expressly define ’employee'”].

  71. Martinez v. Combs (2010) 49 Cal.4th 35, 62.

  72. Compare 29 U.S.C. § 203(e)(1) [“[T]he term ’employee’ means any individual employed by an employer.”], with Cal. Code of Regs., tit. 8, § 11040, subd. (2)(F) [“‘Employee’ means any person employed by an employer.”].

  73. See Cal. Code of Regs., tit. 8, § 11040, subd. (2)(H) [“‘Employer’ means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.”].

  74. S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350 [“‘[T]he principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired . . . .'”].

  75. See S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 351; Tieberg v. Unemployment Ins. Appeals Board (1970) 2 Cal.3d 943, 949.

  76. 29 U.S.C. § 216(b) [“Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.”].

  77. Labor Code, § 203.

  78. Code Civ. Proc., § 338, subd. (a) [statute of limitations: “Within three years: (a) An action upon a liability created by statute, other than a penalty or forfeiture.”]; Aubry v. Goldhor (1988) 201 Cal.App.3d 399, 404 [“[A]n employer’s obligation to pay overtime compensation to his employee would not exist but for the Labor Code. An action to enforce that obligation therefore is governed by the three-year statute of limitations . . . .”].

  79. Cuadra v. Millan (1998) 17 Cal.4th 855, 859.

  80. Cuadra v. Millan (1998) 17 Cal.4th 855, 859.

  81. Code of Civ. Proc., § 339.

  82. See Code Civ. Proc., § 340, subd. (a) [statute of limitations: “Within one year: (a) An action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation.”].

  83. Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1392–1401.

  84. Code Civ. Proc., § 337, subd. (1) [“Within four years: 1. An action upon any contract, obligation or liability founded upon an instrument in writing . . . .”].

  85. Bus. & Prof. Code, § 17208.

  86. See Bus. & Prof. Code, § 17203; Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 178 [“[A]n order that a business pay to an employee wages unlawfully withheld is consistent with the legislative intent underlying the authorization in section 17203 for orders necessary to restore to a person in interest money or property acquired by means of an unfair business practice.”].

  87. 29 U.S.C. § 255(a).