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The city of San José (the city) enacted a minimum wage ordinance (the MWO) that requires you to pay any employee who works at least two hours in one calendar week within the geographic boundaries of the city at the local minimum wage rate (the San José minimum wage).
The MWO applies to your business if it is subject to San José’s business license requirements or if you maintain a business facility in San José. If you are “engaged in or caused to be engaged in within San José including any commercial or industrial enterprise, trade, profession, occupation, vocation, calling or livelihood,” you will be required to obtain a San José business license and will have to comply with the MWO.1
You can find more information regarding the MWO on the city's website. You may also contact the city’s Office of Equality Assurance by phone at (408) 535-8430 or by email at mywage@sanjoseca.gov.
You can find the current San José minimum wage on the city's Minimum Wage webpage.
A covered employee (employee) under the MWO is any employee who:
You must pay employees at least the San José minimum wage for each hour worked in San José. The San José minimum wage applies to employees working in San José, regardless of where the employer is located or whether the employee is a San José resident.4
Employees cannot waive their right to receive at least the San José minimum wage, except through a valid collective bargaining agreement.5
You do not need to pay the San José minimum wage to individuals who are not entitled to the state minimum wage.6 For more information on these types of employees, see Minimum Wage.
The MWO requires you to post an official, city-provided notice specifying the minimum wage and describing employee rights. The notification must be posted prominently at the work site where it will be seen by all employees. The city will publish this notice in all languages spoken by more than 5 percent of the work force in the city. However, because you must display the notice in all languages spoken by 5 percent or more of the employees at each of your business locations, even if not one of the city-identified languages, you may have to translate the city-provided notice.7
In addition, you must display the California Minimum Wage Order, which can be found on CalChamber’s California and Federal Labor Law posters.
At the time of hire, you must provide employees your company's name, address and telephone number in writing.8
State law also requires you to provide the Wage and Employment Notice to Employees (Labor Code section 2810.5) at the time of hire to all nonexempt employees that includes this information and meets the obligation under the MWO.9 More information about the notice can be found on the HR Library's New Employee Orientation page.
You also are required to retain payroll records pertaining to employees for a period of four years. The city must be allowed to access these records with appropriate notice and at a mutually agreeable time.10
If you do not keep adequate records documenting wages paid or you do not allow the city reasonable access to payroll records, the employee’s account of how much they were paid shall be presumed to be accurate. You will have to offer clear and convincing evidence to rebut this presumption.
The MWO is enforced by the Office of Equality Assurance (the office).11 The Office of Equality Assurance enforces minimum wage ordinances for the cities of Belmont, Los Altos, Palo Alto, Redwood City, San Mateo, Santa Clara, and Sunnyvale as well.
The office may conduct investigations and take administrative action to enforce the MWO. If the office conducts an investigation into whether the employer violated the MWO, the employer will be required to post a notice on a form provided by the office informing employees of the investigation.12 The office is required to make every effort to resolve complaints informally before initiating an enforcement action.13
If the office determines that an employer violated the MWO, the office may issue an administrative citation and a fine of up to $50 for each day, or part of a day, and for each employee or person whose rights under the MWO were violated.14 The city also has the authority to take other enforcement actions, such as revoking or suspending permits or licenses, until the violation is remedied.15
In addition, the city, aggrieved employees, entities acting on behalf of a member who is an aggrieved employee, or persons or entities acting on behalf of the public, may file a civil lawsuit for any violation of the MWO.16
Remedies for violation of the MWO may include: back pay; penalties of $50 owed to each employee for each day that the violation occurred, in addition to fines; interest on wages owed; reinstatement; reimbursement of the city’s administrative costs of enforcement; and attorneys’ fees and costs.17 For repeated violations, the city may require the employer to post public notice of its noncompliance.18
The California Labor Commissioner also has the authority to investigate and enforce local minimum wage and overtime provisions, including such provisions in the MWO, and to issue citations and penalties against employers for violations. However, the Labor Commissioner and the city cannot both cite the employer for the same violation.
Employees who assert their rights under the MWO are protected against retaliation.19 For example, employees have the right to complain to their employer that they are not being paid the San José minimum wage; file formal complaints; inform other employees of their right to the San José minimum wage; or to assist other employees in asserting their rights.
If an employer takes adverse action against an employee within 90 days after the employee asserted rights protected by the MWO, the employer’s action will be presumed to be retaliatory. The employer will have to offer evidence to rebut this presumption.
1. San Jose Mun. Code secs. 4.76.050, 4.76.170
2. San Jose Mun. Code sec. 4.100.040E
3. San Jose Mun. Code secs. 4.100.030C, 4.100.040A; San Jose Official Min. Wage Bulletin
4. San Jose Mun. Code secs. 4.100.030B, 4.100.040A
5. San Jose Mun. Code sec. 4.100.050
6. San Jose Mun. Code secs. 4.100.30B(2), 4.100.040A
7. San Jose Mun. Code sec. 4.100.060A, B
8. San Jose Mun. Code sec. 4.100.060B
9. Lab. Code sec. 2810.5
10. San Jose Mun. Code sec. 4.100.060C
11. San Jose Mun. Code secs. 4.100.030E, 4.100.090A
12. San Jose Mun. Code sec. 4.100.080B
13. San Jose Mun. Code sec. 4.100.080D
14. San Jose Mun. Code sec. 4.100.90A(1)
15. San Jose Mun. Code sec. 4.100.090D
16. San Jose Mun. Code secs. 4.100.090A(3), B
17. San Jose Mun. Code sec. 4.100.090B, E
18. San Jose Mun. Code 4.100.090F
19. San Jose Mun. Code sec. 4.100.070