Organized camps enjoy special rules in California that allow them to pay some employees less than minimum wage. However, the rules are also confusing and, in some instances, contradictory. This can cause serious wage and hour compliance problems for organized camp employers who try to take advantage of these rules.
In order to enjoy the special exceptions to California's wage and hour requirements, a camp must fall under the definition of an "organized camp" as defined in Section 18897 of the Health and Safety Code, and meet the standards of the American Camping Association.
Under the Health and Safety Code, an organized camp is a site with programs and facilities established for the primary purposes of providing an outdoor group living experience with social, spiritual, educational, or recreational objectives, for five days or more during one or more seasons of the year. Labor Code - 1182.4(c); Health and Safety Code - 18897.
Student employees, camp counselors and program counselors are exempt from minimum wage and overtime requirements so long as they are paid a weekly salary of at least 85% of the minimum wage for a 40-hour week. Thus, if an employee receives a salary of $272 per week (under the current minimum wage), the employer would be exempt from any additional minimum wage or overtime obligation to that employee.
If an employee works less than 40 hours, the employer may meet the minimum wage obligation by paying the employee at least 85% of the minimum wage for each hour worked (currently $6.80/hr).
In contrast the Labor Code's 85% Rule, the Division of Labor Standards Enforcement (a.k.a., The Labor Commissioner) takes a different position. According to the DLSE, if an employer chooses to pay an employee of an organized camp (other than a camp counselor) only for the hours actually worked (as opposed to a salary payment covering all work in the workweek) all work must be paid at no less than the minimum wage (currently $8.00/hr) for all regular (non-overtime) hours and any work in excess of eight hours in a workday must be paid at the applicable premium rate (currently $12.00/hr).
The 54 Hour Rule
The IWC Wage Order applicable to camps states that, "This section [governing daily overtime] does not apply to organized camp counselors who are not employed more than 54 hours and not more than six (6) days in any workweek except under the conditions set forth below." (Wage Order No. 5-2001(3)(E)). In other words, camp counselors are exempt from the daily overtime provisions contained in Wage Order 5 provided they do not work more than 54 hours and more than 6 days in a workweek.
The Wage Order goes on to state that in the case of an emergency, organized camp counselors may be employed more than 54 hours or 6 days in a workweek, provided that they are compensated at not less than 12 times the employee's regular rate of pay for all hours worked in excess of 54 hours and 6 days in the workweek. (Wage Order No. 5-2001(3)(E)).
The DLSE's Interpretation of the Conflict
However, recall that under Labor Code - 1182.4 a camp counselor paid a salary of no less than 85% of the minimum wage, is not subject to the IWC minimum wage or overtime provisions.
The DLSE, aware of this rule, has opined that in the event an organized camp counselor is employed more than 54 hours in a workweek and the actual hours worked in excess of 54 are not themselves directly attributable an emergency situation, the counselor must be paid the applicable overtime premium pay for all hours in excess of 8 in any one day or 40 in any one workweek. DLSE Op.Ltr 2002.12.09.
Unfortunately, the law is not clear enough to say definitively. In theory, the Labor Code trumps the Wage Orders. Thus, Labor Code - 1182.4 should supersede the DLSE's interpretation of the "54-Hour Rule" if adjudicated. However, if an employee filed a claim with the Labor Commissioner, the hearing officer may apply the DLSE's rule. The safest approach for employers may be to adopt a wage and hour policy that would conform to both the Labor Code and Wage Order 5 and where the rules diverge, err on the side of complying with the Wage Order since it provides a greater benefit to the employee. Given that this area of the law is unsettled, it is strongly recommended that employers seek competent employment legal counsel from an attorney who understands this esoteric area of the law.
For more information, contact FitzGerald & Mulé LLP.
This article is intended for informational purposes only. Nothing herein should be construed to constitute legal advice. It is recommended that you seek legal counsel before making decisions regarding labor and employment matters.