By: Nicholas J. Ferraro | June 28, 2023 | News
California’s fitness industry is one of the most robust and prominent in the US. These gyms, studios, clubs, and salons are an integral part of California’s consumer population. However, due to the large concentration of hourly, nonexempt employees, and the informal business practices common to some fitness businesses, this industry also has some of the most employment and labor law violations. Read below to learn some of the most common California labor law violations seen in the fitness industry.
Employers must pay employees for necessary work completed before and after training clients
For most fitness trainers, the actual time spent working with clients is only a portion of their shift. If the employer requires that the employee show up early, program, set up, tear down, or clean when not training a client, the employer must pay the employee at least the applicable minimum wage for those tasks, in addition to the rate paid for the training session.
California Law mandates that every California employer pay the legal minimum wage to each employee “for all hours worked in the payroll period.” Minimum wage varies first by state, then by county and city as applicable. For example, as of 2024, California’s statewide minimum wage is $15.50/hr, but employees working in the City of San Diego must be paid at least $16.30/hr.
Many fitness industry employers elect to pay their instructors or personal trainers a flat fee per class or training session. However, if an employer does not also provide additional pay for necessary work time spent before, after, and in between sessions, that employer has violated California Law.
Employers must factor bonuses and commission into overtime, sick pay, or premiums
Fitness employees often earn membership or retail sales commissions to supplement their base pay. Due to the pricey nature of gym memberships and athletic apparel in California areas like Los Angeles, Orange County, or San Diego, these commissions are usually a sizeable portion of a fitness employee’s paycheck. Likewise, fitness instructors may earn additional pay past their base hourly rate by achieving higher attendance in group classes via per-head premiums.
While this bonus cash is a great employee incentive and paycheck supplement, Employers often unlawfully omit this extra pay when calculating overtime rates, sick pay, and meal/rest period premiums.
In California, nonexempt employees must be paid the “regular rate of pay” for all overtime, paid sick leave, and meal/rest premiums. The “regular rate of pay” includes hourly rates, bonuses, commissions, and other forms of nondiscretionary pay.
This means that if a California employee makes $18/hr base rate, and earns $100 commission on membership sales, but worked overtime in that same period, overtime wages must be paid based on both the base rate and the commission wages. If the employer generates the overtime rate only from the $18/hr base rate, that employer has violated California Law.
The requirements are the same for paid sick leave and meal/rest period premiums.
Employers must provide employees paid sick leave
Starting in 2015, California law requires that nonexempt employees, including most hourly fitness employees who work for the employer for 30 days or longer in a year, be provided at least 24 hours of sick leave each year. Employers can either choose to provide the sick leave up front as a balance or utilize an accrual rate of at least one hour of paid sick leave for every 30 hours worked. Employees should look out for this balance and/or accrual on their wage statements or another separate writing made available to them.
Employees who have the requisite sick leave hours required by law and have not used up those hours are entitled to payment for sick days. If an employer refuses to pay out sick leave that the employee is entitled to, that employer has violated California Law.
Employers must pay employees for required training or certification
The fitness industry is full of employee certification requirements. For example, many employees, especially instructors, need to hold a CPR, AED, First Aid, or similar safety certification. While a job may lawfully require these transferrable certifications before hiring an applicant, any later recertifications or extensions required by the employer need to be compensated. This compensation should include both the time spent acquiring the certification and the fees an employee might have paid to obtain the certification.
Further, a California fitness employer cannot require a trainer/instructor applicant to pay the employer’s business to participate in a “teacher training” program to obtain a brand-specific, nontransferable certification. Again, while the employer can require that applicants hold transferable certifications from large, accredited organizations like Yoga Alliance, NASM, or ACE before applying, the employer may not mandate that the applicant pay the employer’s business to acquire the certification.
This includes fitness employers that require an applicant to be a paid member of the gym for a certain amount of time before the applicant obtains a job they are otherwise qualified for.
If an employer requires a fitness employee to pay for their own certification costs post-hire or requires an applicant/employee to pay for or participate in an unpaid, brand-specific “teacher training” program, that employer has violated California Law.
Employers must allow completely duty-free rest and meal periods
With stacked class schedules, set up and cleaning in between classes, and near constant flow of business in the fitness industry, many fitness employees find it difficult or impossible to take their required meal or rest periods. However, besides limited exceptions and those who have signed a meal period waiver, California Law requires that all nonexempt employees be provided a duty-free, unpaid 30-minute meal period starting before the end of the employee’s 5th shift hour each workday.
This means that if an employer requires an employee to take his or her meal period on-site, while cleaning, while staffing a front desk, or while otherwise performing tasks under the employer’s control, the meal period is not duty-free. In that case, the employee is entitled to a paid meal premium for the late, short, interrupted, or missed meal period. The meal premium should be calculated at one additional hour of the employee’s “regular rate of pay” (inclusive of bonuses, commissions, etc.).
Similarly, all nonexempt employees who work at least 3.5 hours in a day must be authorized and permitted to take a paid, uninterrupted, duty-free 10-minute rest break for every four hours worked, or “major fraction” thereof (over two hours is a “major fraction” of four). A late, short, missed, interrupted, or unpaid rest period requires a rest period premium, also calculated at one additional hour of the employee’s “regular rate of pay.”
If an employer either does not provide a meal period or permit a rest break where one is due, that employer has violated California Law.
Employers must reimburse employees for cell phone use or gas mileage
California fitness employees often incur significant personal expenses through driving to multiple gyms in a day or by using their personal cell phone to supplement training/classes. These expenses, to the extent they are required or reasonably necessary to perform the job, are reimbursable.
For example, if a San Diego employer schedules a fitness instructor to teach a class at an Encinitas studio in the morning, then a Chula Vista studio in the afternoon, the gas mileage used to get between each location is reimbursable. Likewise, if an employer requires its employees to use their personal cell phone to play music, run programming, clock in and out, or post social media, that employee is entitled to reimbursement for that data usage.
If an employer requires an employee to use gas mileage while driving between scheduled locations or download/use apps on an employee’s personal cell phone to perform the job, and the employer does not reimburse the employee for these costs, that employer has violated California Law.
Employers must allow employees to work at other studios
Fitness instructors can make or break a gym’s brand and product. Because the instructor’s talent and training are such a vital piece to an employer’s business, employers try to keep their instructors exclusive. In some cases, this means that the employer will request the instructor employee to sign a noncompete agreement (sometimes called a “covenant not to compete”), stating that the instructor employee cannot work for a competing studio/gym during employment, and usually for some time after. This restriction can be quite problematic for instructors, who often work on a part-time basis within a specific modality, offered at only a handful of businesses in a given area.
However, California Law prohibits noncompete agreements and other restraints on trade. If an employer requires an employee to sign a noncompete agreement prohibiting that employee’s ability to teach or work at another studio, even if that studio is the employer’s competitor, that employer has violated California Law.
Employers must classify their workers properly
Since fitness instructors might teach at multiple gyms simultaneously, some businesses mistakenly misclassify their instructors as independent contractors, rather than employees. This classification is important because independent contractors are not protected by many of California’s labor laws, including laws regarding overtime, sick leave, or meal and rest periods.
However, as of 2019, workers in California have an assumption of employee status unless a business can generally demonstrate (1) that the worker is free from the control and direction of the hiring entity in performance of the work; (2) that the worker performs work that is outside of the usual course of the hiring entity’s business; and (3) that the worker is customarily engaged in an independently established trade, occupation, or business that is the same as the work the business requests the worker to perform. If a business fails to demonstrate any of the three, the worker will be classified as an employee, subject to the protections of California’s labor laws.
This is a very high burden for fitness businesses to meet since most instructors do not have independently established trades outside the usual course of teaching fitness, and there is often a significant level of control that the business holds over the instructor.
If an employer improperly classifies a worker as an independent contractor, and therefore excludes them from receiving the benefits and protections of the Labor Code, that employer has violated California Law.
Speak with a San Diego Employment Lawyer to Protect Your Rights
Here at Ferraro Vega Employment Lawyers, we have years of experience resolving cases against fitness employers like Orangetheory Fitness and Planet Fitness who have violated California labor laws. If you are a fitness employee in San Diego and you believe your employer has violated your rights, contact us for a free case assessment today.
