We are sending a nonexempt employee to a trade show in a state that does not have daily overtime. Because the employee will be working in that state, are we still required to follow California wage-and-hour laws?
Generally, if work assigned outside California to a California-based employee is temporary, California overtime rules and other wage-and-hour laws apply.
California Protections
California-based employees are entitled to California protections.
Employers cannot escape their California wage-and-hour responsibilities simply because an employee is working temporarily in another state. Short-term work assignments outside California, such as attending a trade show, do not alter the employees’ connections to California sufficiently to override California’s interest in protecting its residents from wage practices that violate its laws.
Multiple court decisions have held that employees who reside and work in California are covered by California wage-and-hour laws even when they are performing work outside California’s borders.
For example, in Tidewater Marine Western, Inc. v. Bradshaw (14 Cal. 4th 557 (1996)), the California Supreme Court found that employees temporarily working on an oil-drilling platform outside the boundaries of the state are entitled to California overtime.
In cases involving airline employees, the courts have arrived at similar results. (Ward v. United Airlines, 9 Cal.5th 732 (2020); Oman v. Delta Air Lines, 9 Cal. 5th 762 (2020); Bernstein v. Virgin America, 3 F.4th 1127 (9th Cir. 2021)).
The issue in the Ward case was whether the pay stub statute, Labor Code Section 226, applied to pilots and flight attendants. The court found that the key to determining the scope of California coverage was identifying where the employees worked most of the time. The court ruled that workers are covered if they perform the majority of their work in California or if they are based in California for work purposes.
Traveling Employee
California overtime rules apply when a California-based employee travels to and works in another state.
California-based nonexempt employees do not lose their rights to overtime and other statutory protections just by crossing a border. If the employee normally works in California and the out-of-state work is temporary, the employer must comply with California laws.
In addition, employees are entitled to be paid for their travel time to and from the other state when they go there to work. This includes all time the employee spends waiting at the airport and traveling from the airport to the hotel and worksite.
For more information on this requirement, see the Travel and Commute Time section on HRCalifornia.
Out-of-State Employees
California wage-and-hour laws apply to nonresidents performing work in California for a California-based employer.
California-based employers also need to be aware that if they bring employees based in other states to work in California, those out-of-state employees are covered by California wage-and-hour laws while working in California.
In Sullivan v. Oracle (51 Cal.4th 1191 (2011)), the California Supreme Court held that California overtime laws apply to nonresidents performing work in California for a California-based employer. The court found that the state has a legitimate interest in protecting employees who are working in California.
California overtime rules will likely not apply once an employee is permanently reassigned or moves to another state to perform their duties. When an employee is living and working in another state permanently, the connection to California has been broken and the laws of the new state will apply.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
