California overtime law requires employers to give overtime pay to non-exempt employees if they work more than eight hours in a single workday, more than 40 hours in a single workweek or more than six days in a single workweek. Employers are required to pay time and a half for work that is done in excess of these hours. In addition, double-time overtime pay is required to be paid for hours worked in excess of 12 hours in a single workday or in excess of eight hours on the seventh consecutive day of work.
However, our California employment lawyers have frequently observed that employers shortchange employees of overtime pay by resorting to a number of strategies that are unfair, unethical and above all, illegal. If your employer is refusing to pay you overtime for hours worked, it is important that you contact an experienced Los Angeles overtime pay attorney who can help you assess your legal rights and options.
Key Points - Table of Contents
- Who is Eligible for Overtime Pay?
- Weekly and Daily Hours
- Employer Tactics
- Blaming Salaries
- Exempt versus Non-Exempt Duties
- How Do Regular Rates and Overtime Rates Correlate in California?
- How Do You Calculate Overtime in California?
- What is the Minimum Wage in California?
- California Overtime Calculator Examples
- What is California Labor Code 511?
- Who is Exempt from Overtime in California?
- Do Salaried Employees Receive Overtime in California?
- Overtime Law Changes in California For Flat Bonuses
- Additional Information About Overtime in California?
- Do I Automatically Get Overtime If I Work on a Holiday?
- Does It Matter If My Employer Has a 'No Overtime' Policy?
- What If I Agreed to Be Paid at a Single Rate for All Hours Worked?
- What Do I Do If My Employer is Not Paying Me for My Overtime?
- How Long Do I Have to File a Wage Claim?
- What Steps Can You Take?
- Contacting an Experienced Lawyer
Who is Eligible for Overtime Pay?
California overtime laws apply to all non-exempt or hourly employees. If you submit a time card at work or punch in and punch out at work, you are most likely eligible for overtime pay. California overtime laws don't apply to the following categories of employees:
Independent contractors: Independent contractors do not enjoy the same protections under California labor laws as hourly employees. This includes the right to receive overtime pay. An independent contractor is a worker who performs a service, typically, under an agreement that states he or she will produce a specified result for a specific amount of money, which is usually pre-determined and agreed upon. An independent contractor typically maintains control over how he or she gets the job done. For example, contractors keep their own hours. Independent contractors are increasingly common in today's gig economy.
Exempt employees: These are employees to whom California overtime laws as well as other wage and hours such as laws that require rest and meal breaks do not apply. Exempt employees are typically those engaged in administrative, executive or professional duties. They are usually supervisors. They also earn a salary that is equivalent to at least twice the minimum wage for full-time work.
Alternative schedule: California overtime laws also do not apply to employees whose employer has put in place an alternative workweek schedule. This is essentially an agreement between employees and their employer that employees may work up to 10 hours a day without overtime pay. In order to be a valid exception to California overtime laws, this type of a schedule must be approved by at least two-thirds of affected employees in a work unit by secret ballot. Employees are still owed overtime if they work more than the number of hours specified in the alternative workweek schedule.
It is important to remember that under California law, unauthorized overtime is still considered as overtime work. This is the case even if your employer does not make a specific request that you work additional hours. In such cases, your employer still owes you overtime pay under California law. The law also states that an employer can discipline an employee if he or she violates the employer's policy of working overtime without getting the employer's prior approval or authorization. But, California's wage and hour laws require that the employee still be compensated for any hours he or she has worked overtime.
California law (Labor Code Section 1194) also requires that an employee be paid all overtime compensation notwithstanding any agreement to work for a lesser wage. Consequently, such an agreement or "waiver" will not prevent an employee from recovering the difference between the wages paid to the employee and the overtime compensation to which he or she is entitled.
Weekly and Daily Hours
California has strict laws when it comes to employees' work hours. These laws have been put in place to protect workers from exploitation and to hold employers accountable. Setting a 40-hour workweek helps ensure that employees are not working over a reasonable workweek without being compensated fairly for the additional work they perform.
The overtime laws in California state that hourly employees cannot work 40 hours per week or more than 8 hours per day without getting paid overtime wages. If they do, employers must pay workers 1.5 times their normal rate of pay, which is also known as "time and a half." For example, if you work 8 hours a day each day of the week from Monday to Friday at $30 an hour and your boss asks you to come in during the weekend, the company would need to pay you $45 per hour for the overtime hours you work.
In some cases such as when an employee works for more than 12 hours in one workday, he or she may be entitled to twice the hourly rate of pay. It is important that you keep track of the hours you work so you are paid correctly for the work you put in.
Overtime pay can be an important option and a blessing for many workers, giving them the opportunity to earn more per hour for hours worked over their regularly scheduled shift. However, there are certain legal loopholes that allow employers to squeeze additional work from their employees without having to pay the required overtime rate. It is important that you empower yourself with the knowledge of how these laws work so you understand whether you employer has the legal authority to deny paying you the overtime rate.
Paying a higher wage to workers can make a difference for a company. In addition to taking advantage of loopholes, employers will also try to engage in covert tactics to avoid paying their workers a fair overtime wage. These are unlawful tactics. But, many workers do not have a strong enough understanding of overtime laws to be able to fight back.
When you understand and see through these illicit employer tactics, you will be in a much better position to identify them and prevent your employer from stealing your wages. If you believe that your employer is deploying such unfair and illegal tactics against you to shortchange your rightfully-earned wages, it is important that you contact an experienced California unpaid wages lawyer to obtain more information about pursuing your legal rights.
One of the strategies employers use when trying to avoid paying overtime wages is to blame it on salaries and saying that salaried employees are not eligible for overtime pay. However, this is not always the case. There are some scenarios where salaried employees may be eligible for additional compensation or even overtime. Examples include those employees who are covered under collective bargaining agreements or those in some specific industries.
Salaried employees can be classified as exempt or non-exempt. It is important to remember that non-exempt salaried employees are eligible to receive overtime pay while exempt salaried employees may not be eligible for overtime. California employers are required to pay salaried exempt employees at least twice the minimum hourly wage based on a 40-hour workweek.
As of 2023, California has set a minimum wage of $15.50 an hour even though several California cities and counties have a higher minimum wage requirement than the state minimum. In 2023, the minimum annual salary to qualify for an exempt employee is $64,480, an amount that has consistently gone up over the past several years.
The takeaway here is that employers cannot blame salaries and hold the fact that you are a salaried employee against you when it comes to overtime pay. If you believe your employer is engaging in such tactics to dodge paying you overtime, it is important that you contact an experienced California employment lawyer right away.
Another common illegal tactic that is used by employers to avoid paying workers overtime is misclassification. It should be noted that misclassifying hourly workers as exempt in order to avoid paying overtime is illegal under federal and California law. In California, employees earning twice the state minimum wage may be classified as salaried. For that reason, employees attempt to misclassify workers as salaried or exempt by giving them a few supervisorial and managerial duties simply to avoid overtime pay. If this is occurring in your workplace, you should discuss the issue with your employer or contact an overtime pay attorney to exercise your rights.
If your employer misclassifies you as an independent contactor, they don't have to pay you benefits such as healthcare, sick pay or vacation. This is why you should familiarize yourself with laws regarding independent contractors. If you are treated as an employee and are required to follow company regulations and even have a company email address, those are some of the red flags that indicate that you should have been classified as an employee, not as an independent contractor. If you receive a 1099 instead of a W2, that means you have been classified as an independent contractor.
Exempt versus Non-Exempt Duties
Non-exempt employees are usually paid an hourly wage or earn a salary that's less than a minimum amount determined by the Department of Labor. If employees are non-exempt or "hourly," it means they are entitled to minimum wage and overtime pay when they work more than 8 hours in a workday or 40 hours per workweek. In California, exempt employees typically must be paid a salary that is at least twice the state's minimum wage. They must also work in an administrative, professional, executive, computer or an outside sales role.
While some employees such as those are salaried or exempt may not be eligible to receive overtime pay, if an exempt employee performs a non-exempt task, they could be eligible for overtime. One of the common tactics employers will try to deploy is mix in these tasks so they will not have to pay non-exempt employees who do overtime tasks and save money on exempt salaries. This is against the law. If an exempt employee performs non-exempt tasks, they may be eligible to receive overtime.
If you believe that your employer is using such strategies to avoid paying you overtime wages, it is important that you contact an unpaid wages attorney to better understand your legal rights and options. You may be owed unpaid wages.
How Do Regular Rates and Overtime Rates Correlate in California?
Under California law, there is a correlation between regular rate of pay and overtime pay. California's general overtime provisions state that a nonexempt or hourly employer who is 18 or older shall not be employed for more than 8 hours in one workday or more than 40 hours in any workweek unless he or she receives 1.5 times his or regular rate of pay. Eight hours of labor constitutes a day's work under California law.
If you have worked more than eight hours in any workday or over 40 hours in a workweek, you are entitled to receive time and a half in overtime pay. If you have worked more than 12 hours in a workday or in excess of 8 hours on the seventh consecutive day of work in a workweek, you are entitled to double your regular rate of pay.
There is a clear correlation between how much you make as an employee in California and what you receive in overtime pay. This is because your overtime pay hinges on the regular rate of pay. For example, if you receive $20 an hour as your regular rate of pay, time and a half overtime would add up to $30 an hour and double overtime would amount to $40 an hour.
How Do You Calculate Overtime in California?
Calculating overtime pay in California can be tricky sometimes depending on your classification as an employee and your regular rate of pay. When calculating overtime in California, employers must use the worker's regular rate of pay, which is not always as simple as an employee's normal hourly amount.
The regular rate is a term used to mean the employee's actual rate of pay after all hourly earnings and other types of compensation such as commissions, bonuses and piece rates are taken into consideration. While the regular rate must include almost all forms of compensation received by the employee, some payments such as discretionary bonuses and business expense reimbursements are excluded.
Here are the steps to calculate your regular rate of pay:
- Determine your base rate of pay, which is typically stated in your job offer.
- Calculate the total amount you earned prior to taxes for a given period.
- Determine any additional payments you received that can be counted as you earnings.
- Add these other payments to the total amount you earned before taxes. Then, divide by the total hours worked during a selected time period. This is your regular rate of pay.
This makes a difference because California Labor Code specifically states that overtime pay must be calculated using an employee's regular rate of pay, not just their base rate of pay. As an employee, you will make much more in overtime pay if your regular rate of pay is used rather than your base rate. This is why it is important to know how your overtime pay is calculated in California.
What is the Minimum Wage in California?
In 2023, the minimum wage in California for all employers regardless of size or number of employees, is $15.50. However, some cities and counties in California have set a higher minimum wage than the state's rate. For example, the minimum wage if you work in the city of Los Angeles is $16.04 and $17.95 if you are employed in the city of Sunnyvale. California labor laws dictate that employers must pay employees the minimum wage that is higher.
For example, if you work in the city of San Diego, your hourly minimum wage should be the local rate of $16.30, even if the statewide minimum wage rate is $15.50. The University of California at Berkeley has a complete list of minimum wage rates in California cities and counties, which can be found here.
It is illegal for California employers to pay workers less than the minimum wage. However, sadly, this is the most common form of wage theft in California and affects workers and families who are low-income and struggle to make ends meet. If your employer has violated minimum wage laws in California, you can bring a labor board complaint or file a wage and hour lawsuit, regardless of your immigration status. If the minimum wage violation affects numerous employees, a wage and hour class action lawsuit may be warranted.
California Overtime Calculator Examples
Here are some examples of how overtime is calculated in California:
Sonia works eight hours a day Monday through Friday, but works 10 hours on Wednesday. Employees are entitled to receive time and a half overtime pay for working more than eight hours up to 12 hours in a workday. Since Sonia worked 10 hours on Wednesday, she should receive eight hours of regular pay plus two hours of 1.5 times overtime pay.
In one week, John works eight hours a day from Monday through Friday. On Tuesday he works 14 hours. In this week, John would be entitled to receive 1.5 times overtime for up to 12 hours and double overtime pay for working more than 12 hours in a workday. For Tuesday, John should get eight hours of regular pay, plus four hours of 1.5 times overtime pay plus two hours of double overtime pay.
In one week, Maria works eight hours a day Monday through Sunday. In this scenario, Maria is entitled to time and a half pay for working more than 40 hours in a workweek and for working more than six consecutive days in a workweek. Since she has worked 56 hours in a workweek, which is 16 hours more than the typical workweek maximum of 40 hours, Maria is entitled to 1.5 times overtime pay. Also, since she worked seven consecutive days in a workweek, she is entitled to 1.5 times pay for the eight hours she worked on the seventh day.
What is California Labor Code 511?
It is important to note that there are some sections of California labor law that treat overtime differently. According to California Labor Code Section 511, an employer may require employees to work more than eight hours per day as a norm. This section of the labor code provides for alternative workweek schedules. An alternative workweek schedule or AWS means any regularly scheduled workweek requiring an employee to work more than eight hours in a 24-hour period. An alternative work schedule can be created for any readily identifiable work unit such as a department, division or shift.
For example, some employers may schedule 10-hour shifts for four days in a week, which adds up to 40 hours a week. In this particular case, workers are not entitled to be paid 1.5 times their regular rate of pay as overtime for the two extra hours because the expectation is for them to work 10 hours in a workday.
Also, they will still be working only 40 hours per workweek. However, if an employee, for example, works 12 hours per day during a 10-hour shift, they are entitled to receive 1.5 times their regular hourly rates for those two extra hours. If they work more than 12 hours in one workday, they are eligible to receive double overtime pay.
Who is Exempt from Overtime in California?
Overtime wages refer to increased pay, which employees earn when they work more than a certain number of hours in a workday or workweek. California labor laws require employers to pay overtime wages when their employees work longer hours. For example, if you work over 8 hours in a workday, you are eligible to receive 1.5 times your regular rate of pay as overtime. If you work over 12 hours a day, you may receive twice your regular rate of pay as overtime.
However, there are some types of classes of employees who may not be entitled to overtime pay. These employees include:
- Employees who are classified as exempt whose primary duties are executive, administrative or professional in nature.
- Workers who are classified as outside salespersons.
- Workers in specific occupations who have special overtime rules.
- Some unionized employees who are part of a collective bargaining agreement.
There are typically three criteria to determine whether an employee is exempt in California:
- The worker must be paid a salary at least twice the state minimum wage for full-time employment.
- White collar duties: The employee's primary duties must consist of administrative, executive or professional tasks.
- The employee should have the authority to make at least some independent decisions.
Do Salaried Employees Receive Overtime in California?
Under California law, a salaried employee must be paid overtime unless they meet the test for exempt status as defined under state and federal laws or unless they are specifically exempted from overtime by the provisions of the California Labor Code or one of the Industrial Welfare Commission Wage Orders that regulate wages, hours and working conditions.
Here are the most important things to know about employee salaries in California:
- Salaried employees may be classified as exempt or non-exempt.
- Non-exempt salaried employees are eligible to receive overtime while exempt salaried employees may not be eligible.
- California employers are required to pay salaried exempt employees at least twice the minimum hourly wage based on a 40-hour workweek.
- California's minimum wage, as of 2023, is $15.50 an hour. Several California cities and counties have higher minimum wage requirements compared to the state minimum.
- The minimum annual salary in California to qualify for an exempt employee in 2023 is $64,480, a number that has consistently increased over the years.
- Some non-exempt employees may also be paid a salary. Non-exempt employees who are salaried cannot be paid less than the state minimum wage. It is important to note that salaried non-exempt workers are also protected by California wage and hour laws such as overtime laws and laws that require rest and meal breaks.
Overtime Law Changes in California For Flat Bonuses
The new overtime law in California in linked to calculating employee weekly pay based on flat bonuses they receive for overtime. The new law was established after the ruling in the Alvarado v. Dart Container Corp. of California case, which was caused by a dispute in the amount employees at the company were supposed to receive as a bonus for completing their weekend shifts.
In this case, the plaintiff was an hourly warehouse employee for a food service products manufacturer. In addition to his normal hourly wages, the plaintiff received an "attendance bonus," a flat additional sum of $15 per day of weekend work regardless of the number of hours worked during the weekend shift. In this lawsuit, the employee disputed the company's formula for calculating overtime compensation for the pay periods in which the plaintiff and his co-workers earned the attendance bonus.
The company essentially divided the compensation including the flat bonus by the total number of hours worked during the pay period including overtime. The court agreed that the company should have computed a special regular rate for the bonus by separately dividing the flat amount by the non-overtime hours worked in the given seven-day pay period. The court also determined that the company should have multiplied that rate by 1.5 times to reach the amount of per-hour overtime attributable to the weekend bonus.
Additional Information About Overtime in California?
Here is some more information about overtime pay and overtime laws in California that may be useful for employees to know:
- Employees cannot waive their overtime pay - 1.5 times more for working over 8 hours during a workday and double overtime wages for working over 12 hours on a workday.
- The time an employee takes to commute to and from work does not count toward regular work time or overtime.
- The time an employee spends traveling for work may count toward overtime if it makes the worker accrue over 40 work hours per week or over 8 hours in one workday. Examples of business-related travel include traveling to and from conferences, trainings, seminars, etc.
- If an employer is aware that their employee is working overtime, the worker is entitled to overtime wages even if this time is not officially recorded in the employee's timesheet.
- California workers can legally refuse to work more than 72 hours during a week without being penalized by their employers.
- When calculating overtime, paid rest breaks are included. Under California law, employees are entitled to 10-minute rest breaks after every four hours of work and 30-minute breaks after every five hours of work.
- The amount of time an employee is on call may count as overtime if the employee works over 40 hours per week or over 8 hours per day.
Do I Automatically Get Overtime If I Work on a Holiday?
Employees in California will not automatically get overtime for working on a holiday. Hours worked on holidays, Saturdays or Sundays are treated like hours worked on any other days of the week. Also, California law does not mandate that employers provide employees with paid holidays. It also does not require that companies close their businesses on any holiday or that employees be given the day off for a particular holiday.
If an employer shuts down business on holidays and gives employees time off from work with pay, such a circumstance exists in accordance with a policy or practice adopted by the company or organization because of the terms of a collective bargaining agreement or terms of employment between the employer and employer. There is nothing in California law that mandates such a practice.
Also, California law does not require an employer to pay employees a special premium for work performed on a holiday, Saturday or Sunday other than the overtime pay required for work performed in excess of eight hours in a workday or 40 hours in a workweek.
If your employer is open on a holiday and schedules you to work that day, there is nothing in the law that obligates your employer to pay you anything but your regular pay and any overtime premium for all overtime hours worked. The law, however, does not prevent an employer from offering employees overtime pay or double pay on holidays as a way to incentivize employees to work on a scheduled holiday.
Does It Matter If My Employer Has a 'No Overtime' Policy?
The answer to this question is "no," because overtime pay is a right that cannot be relinquished by you or taken away by your employer. If your employer maintains that they have a "no overtime" policy, but allows, encourages or pressures you to work overtime hours anyway, you must receive overtime wages for those hours worked.
If your employer instructs you not to work overtime and you do the work anyway, your employer can take disciplinary action against you. In such scenarios, your employer is required to pay you overtime wages even if they discipline you for working overtime without authorization.
If your employer is refusing to pay you overtime or telling you that they have a "no overtime policy," you can inform them that you believe you are entitled to overtime pay for work you have performed. When you talk with you employer or correspond with them, you should include the exact dates on which you worked overtime and the hours that you worked. If you have any documentation such as a calendar, notebook or time sheet, show those to your employer as well.
If you are not getting a response from your employer or if they refuse to pay you overtime for the hours you worked, contact an experienced California wage and hour attorney to obtain more information about you options.
What If I Agreed to Be Paid at a Single Rate for All Hours Worked?
You have the right to be paid overtime wages for every additional hour you work. This is true even if you previously told your employer that you would work for a single rate. In other words, as an employee in California, you cannot waive or give up your right to overtime pay regardless of what you say or do.
Similarly, your employer cannot establish a rule that they will not pay overtime. If your employer says they have a "no overtime" policy, but allows you to work overtime hours anyway, you must be paid overtime wages for those hours. If your employer forbids you from working overtime and you do the work anyway, it is against the law for your employer to refuse overtime. They may discipline you for insubordination, but they would still have to pay you for the time worked, even if you face such disciplinary action.
Even if you agreed to be paid for a single rate for all hours worked, your employer must pay you 1.5 times your regular rate of pay if you work over 8 hours per day or over 40 hours per week. If you work over 12 hours during a workday, you may be eligible to receive twice your regular rate of pay as overtime.
What Do I Do If My Employer is Not Paying Me for My Overtime?
If your employer is not paying you overtime, tell them that you believe you are entitled to overtime pay for work you have performed. When you talk to your employer, be sure to include the exact dates on which you worked overtime and the number of hours you worked. If you have any documentation such as time sheets, calendars of notebooks where you keep track of the hours you worked, you should show it to your employer.
Contact an experienced California wage and hour attorney to find out what your rights are. Your attorney can also help you file a wage claim with the California Division of Labor Standards Enforcement (DLSE) or the Labor Commissioner to recover the wages you should have been paid. You may also be able to file a wage and hour lawsuit to collect your wages. In some cases, where the amount of wages you are owed is under $10,000, you may be able to go to Small Claims Court.
Your chances of recovering back wages or unpaid wages will be maximized if you track and keep your own written record of the hours you work. Be sure to save any paperwork such as pay stubs or time sheets that your employer gives you.
How Long Do I Have to File a Wage Claim?
Wage claims must be filed within a strict timeframe. The deadline to file such claims is known as a statute of limitations. The statute of limitations for filing wage claims in California is typically three years from when the most recent violation took place. However, in many cases, a skilled employment lawyer may be able to extend the time limit to four years before a lawsuit is filed. This four-year deadline applies to most wage violations including claims for overtime, commissions, minimum wage and failure to provide rest and meal breaks.
Despite these deadlines, it is important to file a wage claim as soon as possible. Failing to do so could cause you to lose your right to claim any unpaid wages from before the statute of limitations period. Also, you may have other related employment claims that have their own time limits. An experienced California employment lawyer, in addition to helping recover your unpaid wages, can help you secure penalties and damages that could significantly increase the value or worth of your unpaid wages claim.
If you believe your employer owes you unpaid wages, speak with an experienced wage and hour attorney right away. A knowledgeable lawyer can help ensure that you meet the deadline for filing a wage claim or lawsuit so your rights are protected and you are fairly compensated for your losses.
What Steps Can You Take?
If your employer is refusing to pay the overtime wages that are owed to you, here are some of the steps you can take:
Write it all down. Be sure to keep track of all the hours you worked. Write down the jobs you did during that time, even if it was during lunchtime or when you were off work and at home. If you have a diary or calendar, write it in there. Do not keep any of these records or documents at work. This is because you could lose access to them if you get fired. Keep them at home. The Department of Labor also has a smartphone app you can use to keep track. However, if your smartphone belongs to your employer, it is best to use your personal cell phone or other means to keep track.
Report it. If you believe you have been misclassified as an independent contractor, report it to the Internal Revenue Service. You can fill out a form called the SS-8 and have them determine whether or not you have been misclassified. You can also report any violations to the Department of Labor, which is available via phone and email.
Don't talk about it on social media. If you have any type of grievances against your employer, don't express them online or on social media. What you say on social media can and often will be used against you. Even anything that is unconnected to your work-related issues could be used against you. So, in such cases, it may be best to deactivate your social media accounts until your workplace issues are resolved.
Contacting an Experienced Lawyer
If your employer is avoiding paying you overtime for additional hours worked, it may be in your best interest to contact an experienced California overtime lawyer who will remain on your side, fight for your rights and help you secure fair compensation for your lost wages. You may also be entitled to attorney's fees and costs.