If you’re a crewman on a licensed commercial passenger fishing boat (LCPFB), earning the minimum wage should be as easy as shooting fish in a barrel. Sometimes, it isn’t. The custom in the commercial fishing industry of paying crew members based on “one-half day,” “three-quarter day,” “full-day,” or “overnight” fishing trips, rather than on the number of hours of work, can lead you on a fishing expedition. Fortunately, California law doesn’t let LCPFB owners shanghai their crew. If you’re an LCPFB crewman, California law entitles you to minimum wage for each hour of work.
How Commercial Fishermen Can Reel in the Minimum Wage
California law accommodates LCPFB owners by letting them pay crewmen according to industry custom. For a “one-half day” trip, an LCPFB owner may employ a crewman for a maximum of six hours of work for at least six times the minimum wage; for a “three-quarter day” trip, a maximum of 10 hours of work for at least 10 times the minimum wage; for a “full-day” trip, a maximum of 12 hours of work for at least 12 times the minimum wage; and for an “overnight trip,” a maximum of 12 hours of work within a period of 24 hours for at least 12 times the minimum wage.1
LCPFB crewmen don’t have to feel at sea over their entitlement to the minimum wage. Like nonexempt employees in general, LCPFB crewmen have the right to minimum wage for each hour of work. The law, not industry custom, determines how much an employer owes an LCPFB crewman. So if a six-hour “three-quarter day” trip turns into a seven-hour trip, the employer will owe a crewman seven times the minimum wage (i.e., $9 per hour for each hour of work), not six times the minimum wage. If the employer pays less than $63, he’ll owe back wages, liquidated damages equal to the amount of the back wages, and interest.2
Is Overtime the One That Got Away for Commercial Fishermen?
Overtime is a fine kettle of fish. Generally, California law entitles a nonexempt employee to: (1) one-and-a-half times his regular rate if he works more than eight hours in one workday, more than 40 hours in one workweek, or the first eight hours on the seventh consecutive day of the workweek; and (2) double his regular rate if he works more than 12 hours in one day or more than eight hours on the seventh day of a workweek.3 LCFPB crewman are exempt from overtime.4 The law can’t fairly require an employer to pay overtime to a crew for all the hours it spends marooned on a desert island. So don’t boil the ocean in search of overtime.
But a guide boat crewman shouldn’t be exempt from overtime. Like an LCPFB, a guide boat can fish for profit, but it isn’t a commercial passenger fishing boat within the meaning of the law if: (1) it’s under 25 feet long; and (2) it operates in inland waters for packing or guiding, assisting in taking a fish or amphibian for pay, or assisting in locating a bird or mammal for pay.5 So if a guide boat crewman works for more than eight hours in one workday, he should get overtime. The “catch” is that he can only catch 14 kinds of fish, and with the drought devastating California lakes and rivers, he shouldn’t expect to do much overtime.