California Overtime Law
Overtime pay is what hourly workers should get paid if they work more than 8 hours in a day or more than 40 hours a week. Even though that seems pretty straightforward, employers up and down the state routinely violate CA’s overtime laws. We get calls all the time from people who haven’t been paid proper overtime wages for years. This webpage details all of the major overtime issues that employees face:
- California’s overtime law 2017
- Overtime exemptions
- The different issues surrounding overtime pay
- How can a lawyer help?
Overtime Basics
For the sake of explaining the law, both federal and state defines a workweek as 7 consecutive days that begin with the same calendar day every week[1]. Federal and California overtime law 2017 was established to protect employees, so that employers cannot take advantage of those who do not know the wage and hour laws.
California Labor Code
The California Labor Code guarantees overtime pay for non-exempt employees. Under the California Labor Code § 510, overtime is when an employee works:
- Over 40 hours a week
- Over 8 hours per workday
- If over 12 hours in a day, the employer is to pay double the regular rate for the excess time past 12 hours
- If the employee works 7 consecutive days in the same workweek, all hours worked on the 7th day are all considered to be overtime. If the employee works more than 8 hours on that 7th day, all hours over 8 should be paid at 2x the regular rate of pay
If you feel like you weren’t paid proper OT wages, contact the Bohm Law Group for a consultation.
Fair Labor Standards Act
The Fair Labor Standards Act is the federal law regarding overtime. But CA employers must follow the California labor code. The main difference between federal and California overtime law is that federal law only requires overtime to be paid for hours worked more than 40 hours in one week, whereas CA also requires OT for all hours over 8 in a day. When both federal and state laws govern the same issues, employers are to follow the law that gives employees the best protections (that is usually California law).
California OT Exemptions
Overtime pay does not apply to all employees in California. Salaried workers don’t get overtime no matter how many hours they work. But employers often intentionally misclassify employees as salaried “exempt,” in a deliberate effort to avoid paying paying an hourly worker overtime. Misclassification is a common issue.
The only time an employe can make an employee exempt (salaried) is if they fit within one of the below exemptions. But they are confusing. So make sure you contact a lawyer if you still feel like you should be paid by the hour.
Here are the legal overtime exemptions under California overtime law:
- Executives – An executive is someone who spends more than half of their time at work managing the business or departments of a business; they are exempt from California overtime law.
- Administrative – Employees who spend more than half of their work time helping the proprietor or another exempt worker; they qualify for overtime exemptions.
- Professional[2] – These are employees who have certain licenses to practice a profession or are working in a learned or artistic profession.
- Computer software professional – This overtime exemption is specific to those employees who work in highly theoretical aspects of computer software and are paid more than $41/hour.
- Outside salesperson – This applies to those who regularly work outside of the office, to do sales and order fulfillment. The only stipulation is that this person does not spend a significant portion of worktime doing the same thing as another employee that is non-exempt.
- State and local government employees – Those who work for state or local government agencies.
To see a full list of California overtime exemptions, go to the Department of Industrial Relations website. But that is not the end of the inquiry! There are also IWC wage orders that apply to specific industries that outline additional protections and exemptions. These wage orders are very specific, complicated, and confusing. We don’t recommend that you try to decipher them on your own. Only an experienced overtime lawyer will be able to correctly identify which order applies to you.
The Different Issues Surrounding OT Pay
Overtime pay is often overlooked because many employers don’t want to consider the actual amount time their employees are working. Here are many of the typical issues that we encounter:
Waiving Overtime
Employees cannot waive their rights to being paid for overtime hours. It is mandatory for the employers to pay for any amount of time that was worked after 8 hours in a day and after 40 hours in a work week.
“Off the clock” Work
If an employer knew or should have known that an employee was working off the clock, then that time needs to be paid for. Off-the-clock work is the work that was done when the employee wasn’t punched in on the time clock. It is very common for employers to ask their employees to work through their lunch break, or to clock out at the end of the shift but continue to perform their duties. This work should be compensated properly.
Overtime pay for piece rate workers
With some exceptions, California overtime law applies to employers who pay employees with a piece rate compensation structure (a set amount of pay per unit completed). If a piece-rate employee works more than 8 hours per day or 40 hours per week, the employer must pay for the overtime hours worked. But the issue is how to calculate that amount. This is very complicated.
Designated rest breaks
In an 8-hour work day, employees are entitled to two 10-minute rest periods that are counted on-the-clock. If the employee takes both 10-minute breaks during the day and ends up working 8 hours and 20 minutes that day, the 20 minutes should be paid at the overtime rate.
Travel time
The time that an employee travels during work, as directed by the employer, is to be counted towards hours worked. Some examples of travel for work can include: driving to a trade show to represent the company, driving to sales meetings, and driving to meet with clients for lunch.
“Necessary” overtime
The necessity of overtime isn’t considered when calculating the amount of overtime. The only thing needed is that the employee worked overtime. It doesn’t matter if the employee could have finished the work the next day instead of staying overtime today to finish a project.
How Can an Overtime Attorney Help?
Collecting the overtime wages that you are owed takes a lot of effort and proof. If you hire an overtime lawyer, he or she can help you figure out exactly how much overtime pay is owed to you and lead you through the process getting that money. To do this, the lawyer will assist you in gathering documents, including your paystubs, timesheets, employment agreement, arbitration agreement (if applicable), and any other evidence that is needed.
The first step is to use those documents to calculate a rough number of the unpaid overtime. At this point, the lawyer has not officially taken your case yet. If the overtime owed is significant, and the claim has a good chance to be proved then the lawyer is likely to accept your case. If for one reason or another, the attorney doesn’t take your case you may be referred to the Department of Industrial Relations or the labor board.
If your case is accepted and the overtime attorney takes your case, you’ll likely be going through these next steps:
- Your lawyer will decide whether to file the claim as a class action or keep it as an individual action. Your lawyer will file the complaint and serve the employer.
- At this time, your legal team will conduct discovery, obtain documents, find witnesses, and collect as much evidence as possible to prove your case.
- Your lawyer will try to get a fair settlement outside of court, so you may go through mediation. If the employer does not agree on a settlement, the Bohm Law Group will take your case to trial.
If you’ve been denied proper overtime pay, contact our employment attorneys as soon as possible. Your employer may have intentionally or unintentionally denied you your overtime pay, but it’s very difficult to convince your employer to pay you without a great lawyer backing you up.
[2] California Code of Regulations § 11010