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California Overtime Pay Disputes

//California Overtime Pay Disputes

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California Overtime Pay Disputes 2019-09-11T19:30:48-04:00

Helping Workers in Los Angeles and San Francisco

As an employee in California, you are entitled to overtime pay if you work more than a certain number of hours or consecutive number of days. Unfortunately, some employers are not always compliant with overtime laws resulting in billions of dollars in lost wages. If you have questions about your overtime pay, whether you are entitled to overtime wages, or what to do if you are not receiving overtime wages, then this Guide is for you.

If you are looking for immediate help with an overtime pay issue, contact us at our Los Angeles or San Francisco offices.  For details about our Los Angeles office, click here.   For details about our San Francisco office, click here.

Or schedule a free overtime consultation here: Schedule Appointment

What Is California Overtime Pay?

Overtime pay, or wages, refers to increased compensation employers pay to employees for working over a certain number of hours or consecutive days. In California, most non-exempt employees are entitled to overtime wages, and the amount depends on the hours worked as shown in the table below:

Hours Worked Overtime Pay Rate
More than 8 hours in one workday 1.5
More than 40 hours in one workweek 1.5
7th consecutive day in one workweek 1.5
More than 12 hours in one workday 2
More than 8 hours on the 7th consecutive day in one workweek 2

Before we dive in, it is essential to define a few key terms.

Workweek. A workweek is seven consecutive days, starting on the same calendar day each week. Employers designate the start of the workweek, and it does not need to coincide with the calendar workweek (which traditionally begins on Monday).

Workday. A workday is a 24-hour period beginning at the same time each calendar day.

Regular Rate of Pay. Regular rate of pay is used to calculate overtime pay and depends on how an employee is paid (e.g., hourly or salary). Regular rate of pay for hourly employees is their hourly rate. If an employee receives nondiscretionary bonuses in addition to an hourly rate, an employer must also consider the bonus when calculating the regular rate. Keep in mind that not all bonuses are included. Discretionary bonuses, such as a Christmas bonus, are not counted.

For example, an employee is paid $20 per hour and receives a $200 performance bonus for work during a specific week. The employee worked 40 hours during that workweek. Divide the bonus by the number of hours worked: $200/40 hours = $5 per hour. Add the hourly bonus rate to the regular hourly wage to get the regular rate of pay: $5 + $20 = $25 per hour regular rate of pay.

The regular rate of pay for a salaried employee is calculated by dividing the weekly salary by the number of weeks in one year (52), and then dividing the weekly salary amount by the number of hours the salary is intended to cover.

For example, an employee’s annual salary is $70,000.

$70,000/52 weeks = $1,346.15 salary per week

$1,346.15/40 hours = $33.65 regular rate per hour

Hours Worked. Hours worked refers to the actual hours an employee works and is subject to the control of the employer, not the hours an employee was scheduled to work.

Exempt Employee. Exempt employees are not entitled to overtime pay. Generally, exempt employees are paid a fixed salary equal to at least twice the minimum wage and have job duties specified by law (administrative, executive, or professional tasks). They are usually employees working in white-collar positions that have significant discretion executing their job functions without close supervision. Examples of exempt employees may include administrative assistants, bookkeepers, management, doctors, lawyers, or engineers. Determining exempt or non-exempt status can be complicated, so if you have questions about your classification, contact one of our employment attorneys [insert link].

What are the California Overtime Pay Laws

California Overtime pay laws were implemented to encourage employers to hire additional employees by requiring increased pay for overtime work. Consequently, employment rates increased because employers wanted to avoid paying overtime wages. Overtime pay laws also protect employees from unreasonable work hours.

Overtime pay is governed the federal Fair Labor Standards Act (FLSA) and the California Labor Code. While there is some overlap between the laws, California overtime laws are broader and provide more protections for employees.

Are you Covered or Exempt from the California Overtime Pay Laws?

Who is entitled to Overtime Pay?

Everyone who is not exempt is entitled to overtime pay.  Hourly employees are entitled to overtime pay, but some salaried employees are not.

Who is exempt from Overtime?

Exempt employees are (1) paid by salary, (2) receive at least twice the minimum wage, and (3) have significant discretion to execute job functions without close supervision.   The exemption is determined by salary and duties, and not job titles.  The employees listed in this section are not covered by California overtime pay laws.

Exemption Name Description
Administrative Employees Employees in this group assist with the management or operation of a company. They must exercise discretion and independent judgment with regard to their primary duties.
Executives These employees primarily manage a business, or division within a company, and must supervise two or more full-time employees. They must also play a role in the hiring and termination of employees.
Professional Employees Employees in this group perform work requiring specialized knowledge or education. Examples include doctors, dentists, lawyers, architects, and engineers.
Independent Contractors Independent contractors are self-employed.
Computer Software and Design Professionals This group includes employees in the computer software industry that meet the following criteria: paid on an hourly basis; primarily engaged in intellectual or creative work requiring use of discretion and independent judgment; and primarily engaged in duties under the statute such as testing or creating software or hardware for operating systems or creating, analyzing, or testing computer systems or programs.
Relatives of Employer An employee who is the parent, spouse, child or adopted child of the employer is exempt.
Volunteers Persons participating in national service programs, such as AmeriCorps are exempted from overtime laws.
Commercial Fishing Boat Crew Members Commercial fisherman are exempt from the overtime pay.
Outside Salespersons These employees sell items (tangible or intangible) or obtain orders or contracts for products, services, or the use of facilities. They must regularly spend more than 50 percent of their time working away from the employer’s place of business.
Commissioned Sales Employees Employees with earnings exceeding 1.5 times the minimum wage and with more than half their compensation consisting of commissions are exempt.  Click here for more on commissioned salespeople.
Union Employees Union employees can be exempt from overtime law if their collective bargaining agreement expressly provides for: a regular hourly rate of not less than 30 percent more than California minimum wage; wages, hours of work, and working conditions; and rates for overtime worked.
Criminal Investigators Criminal investigators are exempt from overtime pay.

How To Calculate Overtime Pay

Use the following formula to calculate overtime pay owed:

Overtime Pay = (Regular Rate of Pay) x (Overtime Pay Rate) x (Overtime Hours Worked)

Hours Worked Overtime Pay Rate
More than 8 hours in one workday 1.5
More than 40 hours in one workweek 1.5
7th consecutive day in one workweek 1.5
More than 12 hours in one workday 2
More than 8 hours on the 7th consecutive day in one workweek 2

An employee must receive the earned overtime pay in their next paycheck.

Sick days and vacation time. If an employee uses vacation or sick days during a workweek, the hours cannot be used when calculating overtime pay. For example, an employee’s paystub shows the employee worked 48 hours in one workweek, but 8 hours of the total was vacation pay. The employee’s actual hours worked does not exceed 40 hours, so they would not be entitled to overtime pay.

Common California Overtime Pay Issues

  • Unauthorized Overtime. Employers are required to pay employees for unauthorized overtime, and it is the responsibility of the employer to prevent unauthorized overtime. That being said, employees should follow their company’s policies on overtime and seek authorization if required.
  • Comp Time. An employer cannot give an employee “comp time” instead of paying overtime pay. However, an employee can request comp time if certain conditions are met, including a written agreement for comp time before the work is performed; the employee has not accrued more than 240 hours of comp time; employee made written request for comp time instead of overtime; and employee regularly scheduled for no less than 40 hours per workweek.
  • Missed Meal Breaks. Deducting employee pay for meal breaks not taken is another way employers may cheat employees of out overtime pay. Employees working through meal breaks must be paid for the break—if you are not relieved of your duties during a meal break, the time should be counted towards your hours worked.
  • Off The Clock Work. Off the clock work includes time worked by an employee before or after an employee’s shift, in which the employer receives a benefit. This is often considered prep work or prep time. For example, time spent opening or closing a store, cleaning up at the end of a shift, changing into special uniforms or protective equipment before a shift, or a customer service representative who takes calls before a shift ends, but must stay on the call until the issue is resolved. This time should be included in hours worked.
  • On-Call Time. If an employee can engage in personal activities while on call and is given a reasonable time to report to work if they are called in, they are not entitled to compensation. However, if the employer exercises control over the employee to the point the employee cannot take part in personal activities when waiting to be called in, they may be entitled to include the time in their hours worked.
  • Travel Time. If an employee spends time traveling as part of their primary duties, it must be included in hours worked.
  • Misleading Job Titles. An employer cannot assign an employee a particular job title to avoid overtime requirements. For example, an employer cannot designate an employee as a manager who does not supervise or manage anything. Similarly, an employee cannot misclassify an employee as an independent contractor to avoid paying overtime pay.
  • Mandatory Overtime. Employers may require workers to work overtime when needed, but California employees can refuse to work overtime if they have worked 72 hours or more during the previous week. This is commonly seen in the health care industry to ensure sufficient staffing levels.
  • Waiving Overtime Pay. Employees cannot waive overtime pay. If they are eligible to overtime wages under the law, employers must pay.

What To Do If Your Employer Is Not Paying You Overtime?

If your employer is not paying you overtime pay, the first step is talking to them about it.  Often, the problem is the result of an oversight and can easily be corrected.  Many people are afraid to complaint about wage violations.  It is illegal to fire an employee who complains about improper pay practices.   See our article on whistleblower cases.  Another option is filing a claim with the California Division of Labor Standards Enforcement (DLSE).

If you are unable to resolve the issue or are afraid of retaliation, you can contact us at our Los Angeles or San Francisco office for a free consultation.  We will review your situation, determine if you are entitled to overtime pay, and discuss the best course of action to recover unpaid overtime wages. We have been helping people recover unpaid wages for over a decade and recovered millions in unpaid wages. Contact us today at (213) 377-5717 or (415) 325-2088.

Or schedule a free overtime pay consultation below.