06/26/2018
Q: I am the owner of the salon but I don't visit my business on a regular basis. My workers collect the money from the clients, and they give me 40%. How do I classify these workers?
a: Whether you go to your salon once a month or not at all, your presence at the business does not change the classification of the workers. If the workers are carrying out the duties required to operate your business, they should be classified as employees. How you pay them does not affect the status.
Q: My workers don't want to receive checks. What should I do?
a: You can pay the workers other forms of payment, however, you should make proper deduction as required by law and provide them with itemized deduction statements and keep the records for 3 years. You should keep in mind that proving you paid in cash will be very difficult if there is a dispute of unpaid wages.
Q: A worker receives a 60/40 split. Can she volunteer to stay after hours and receive commission for the additional hours worked?
a: Commission is from sales only and a 60/40 split would be classified as a rate of pay and you would still need to ensure that the workers are paid for all hours worked. The after hours worked should be counted as hours worked and as overtime if exceeding 8 hours per day.
Q: Can timecards be filled in by hand or is a time clock required?
a:) Time records can be recorded by hand or time machine so long as all hours worked are recorded accurately including the meal periods.
Q: Can we pay cash but still provide 1099 stub at the end of the year?
a: There is no correlation between cash payment and issuing a 1099. Paying cash does not prevent the issuance of a 1099 and issuing a 1099 does not prohibit payments in cash. What is important is can the employer legally issue a 1099 to the worker they are paying. If the worker is an employee, and most likely they are, issuance of a 1099 would be unlawful. With that said, paying cash is highly discouraged, but not unlawful for payment of wages due to employees, as long as a wage statement in accordance to Labor Code Section 226a is provided.
Q: If I worked 3 hours per day, seven days per week, is it considered overtime?
a: Working three hours per day does not qualify for daily overtime, however, since you work seven days per week, you are entitled to overtime wages for the three hours worked on the seventh day.
Q: If an employee voluntarily works without taking a break, is it ok?
a: The employee may elect not to take their rest periods, however, the employee must be provided with an opportunity to take a rest period.
Q: Is there an overtime requirement when you work on the 7th consecutive day?
a: Yes the first 8 hours on the seventh day should be counted as overtime and hours over 12 are double time.
Q: If our business doesn't have timecards, can we issue the workers a W2s based on weekly hours?
a: The regular weekly hour is 40 hours per week but an hourly employee must be paid on actual hours worked and cannot simply be paid based on the weekly hours.
Q: Are workers allowed to stay in the salon after their working hours?
a: Employees may be permitted to stay in the salon after working hours, however, it is not recommended. If employees who were permitted to stay at the business after working hours claim unpaid wages for the hours permitted to say after work hours, the employer will have a difficult time proving the employees were not required to stay for the benefit of the employer. If the employee is waiting for a ride home and is requesting to stay in the business for safety reasons, the employer should document and permit the employee to stay in the business.
Q: My question is in regards to tips. I split my wages 50/50 with the owner. Is it acceptable for the owner to give me $8 after a client has added $10 as a tip to the credit?
a: Tips are sole property of the employees and should not be. deducted or split. Tips pooling however, is allowed.
Q: I pay issue 1099s to my workers can I require them to be at work during my business hours?
a: The first issue you should address is whether or not you can provide the workers with a 1099. If they are employees, you can require them to be at work at the opening hours, but cannot provide them with a 1099. Chances are the workers you have to work at your business are employees and should be given a W-2 rather than a 1099.
Q: Does the law regulate when a lunch break is taken? For example, how many hours do I have to work before I am entitled to a lunch break? Does the owner decide when a lunch break is taken? Or can the worker elect when to take a lunch break?
a: Labor code section 512 provides that 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 thirty 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. The owner can decide when the employees should take a meal period, however, the meal period must be taken before the fifth hour of work. The employee may elect not to take a lunch period, however, allowing employees to skip their meal period is not highly recommended.
Q: The owner pays bi-weekly. If I work 60 hours the first week and 20 hours the second week, would the owner have to pay me 20 hours of overtime for the first week?
a: Yes the owner would have to pay 20 hours of overtime for the first week.
Q: During tax season, when my workers need to file their tax return, they tell me how much they want me to report. What do I have to do?
a: The law requires you report accurate information. Failure to comply with the applicable laws and regulation places your business at risk. Complying with the employees’ request does not justify your actions, therefore, you should consult with a tax professional before taking any actions.
Q: Are the 10-15 minutes breaks between clients considered rest breaks?
a: No. Rest periods must be free of duty. Chances are the employees are preparing for the next client during the 10 to 15 minutes therefore such time would not be considered rest periods.
Q: If workers take a meal break longer than 30 minutes, do they still get paid for that time?
a: The meal break is a non-paid, uninterrupted, off-duty period of not more than an hour. Payment for such time is not required whether it is 30 minutes or an hour.
Q: A nails salon has 6 to 7 employees. These employees are paid commission on a 60/40 split; does the employer need to have worker’s compensation?
a: Workers’ Compensation insurance is required for all employees, regardless of payment method or number of employees. Splitting the amounts 60% to 40% is not unlawful, however, the employer must make sure the amounts received by the employees are sufficient to cover at least the minimum wages and overtime wages, if any, for all hours employees work. Employer must supplement any amount needed to satisfy the minimum and overtime wages earned.
