Overtime

The skilled labor lawyers at Kingsley & Kingsley have decades of experience helping workers throughout California recover unpaid wages when they have been unfairly denied overtime pay.

Both state law (California Labor Code) and federal law (Fair Labor Standards Act) require overtime to be paid in certain circumstances.  Taken together, these laws require that overtime be paid at a premium rate of one and one-half times the regular rate of pay for any hours worked over eight hours in one day or 40 hours in one week.  Additionally, employees are entitled to double their regular rate of pay when working over twelve hours in one day.

Exemptions and Misclassification

Not all employees are entitled to overtime.  The most common exemptions are the "white-collar" exemptions for administrative, executive, and professional employees.  To qualify as exempt, these employees must be paid at least $640 a week on a salary basis. Being paid on a salary basis generally means that deductions may not be made based on the quality or quantity or work, or whether an employee worked a certain number of days or hours in a given week. 

In addition to the salary basis test, each exemption has further duty-specific criteria.  For instance, the executive exemption applies to employees who spend more than 50% of their time managing two or more employees and who have the authority to hire and fire or make recommendations regarding decisions.  In order to qualify for the administrative exemption, the employee must perform office or non-manual work directly related to the management or general business operations of the company, regularly exercising discretion and judgment under general supervision.  Professionals are people whose work requires advanced knowledge and education and often a license or certification issued by the state.  Additional exemptions under the law apply to computer/high-tech workers, outside sales employees, and certain inside sales persons.

There are other criteria specific to each exemption in addition to the ones noted here.  If you believe you may have been misclassified and thus unfairly denied overtime pay, consult with an experienced labor attorney.

Independent Contractors

Another common overtime error involves wrongfully classifying workers as independent contractors, who are not entitled to overtime.  Whether a worker is an independent contractor or an employee depends upon several factors, such as whether the worker works exclusively for the employer or for others as well, the importance of the worker to the employer's business, the degree of supervision and control the employer exercises over the work, and whether it is the worker's or the employer's tools, equipment, and facilities which are being used to perform the work.  California law begins with the presumption that the worker is an employee, and it is up to the employer to provide specific proof that the worker is an independent contractor.

Commissions

Being paid on a piece-rate or commission basis does not automatically exempt the employee from overtime pay.  In California, inside sales employees paid on a commission basis are entitled to overtime unless they are paid at least one and one-half times the minimum wage and earn over half of their income from commissions.

Another issue common to commissioned employees is the matter of charge-backs.  For instance, telecommunications employees who are paid commissions based on sales they make sometimes have their commissions charged back against them when subscribers subsequently cancel.  This may be a violation of the law, which in general prohibits deducting an employee's earned wages.

If you believe that you have been unfairly denied overtime wages or misclassified as an exempt employee or independent contractor, contact Kingsley & Kingsley for a free consultation with one of our experienced attorneys.