CAPSES  (as a Member of CAPSO) is working on finding a resolution to the 2x minimum wage requirement.   CAPSO (California Organization of Private School Organizations) issued a Brief on Section 515.8 of the California Labor Code and, more specifically, Section 515.8(b)(3).  This provision requires a private school teacher to be paid at least twice the state minimum wage, on a monthly basis, as a criterion for the designation of exempt employee status.  One important fact to bear in mind is that Section 515.8 did not create the twice-minimum-wage requirement, nor did it create the requirement that such a salary base be paid on a monthly basis.  Those requirements predated Section 515.8,  and applied to any professional exemption (notwithstanding other laws establishing “carve-outs” for specified professions, or groups).  

The “INDUSTRIAL WELFARE COMMISSION ORDER NO. 4-2001 REGULATING WAGES, HOURS AND WORKING CONDITIONS IN THE PROFESSIONAL, TECHNICAL, CLERICAL, MECHANICAL AND SIMILAR OCCUPATIONS,” which contains the regulations that were controlling for private school teachers before the creation of Labor Code Section 515.8, and which would continue to be in effect if Section 515.8 did not exist.

The regulations governing professional exemptions begin (on page 3 of the document) with the following language: “Professional Exemption. A person employed in a professional capacity means any employee who meets all of the following requirements…”   One of the requirements that follow is found at the top of the following page, and reads as follows: “(d) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515 (c) as 40 hours per week.”

As can be seen, the twice-minimum-wage-on-a-monthly-basis requirement was not created ex nihilo for purposes of inclusion in Labor Code Section 515.8.  Private school employers that failed to meet this requirement before 2007 - in the belief that either the federal regulations were controlling, or that private school teachers were subject to the same exemption as public school teachers - were taking their chances.