While many businesses treat their employees fairly, unfortunately, this is not always the case.
Employers sometimes attempt to exploit their employees, often by paying them less than what they are owed.
Particularly, if you work long hours, understanding California overtime laws is an important part of knowing your rights as an employee.
Workplace Rights Law Group represents employees in California. When employers withhold overtime pay, California employees can come to us for help.
Contact us today if you believe your employer violated your workplace rights.
What Is California “Overtime”?
Generally speaking, “overtime” under California labor law includes any work you complete:
- Over 40 hours during a workweek,
- Over eight hours during a workday, or
- On the last day of a seven-day workweek.
Depending on when the overtime occurs, employers are on the hook for giving employees increased wages for their overtime work.
What Is the Overtime Rate in CA?
In most cases, the overtime laws in California entitle employees to overtime pay equal to 1.5 times their regular rate of pay, frequently called “time and a half.”
Additionally, employers may owe up to two times the employee’s regular pay, known as “double time” in California. Employees earn double time for:
- Any time beyond eight hours worked on the seventh consecutive day of work in a workweek; and
- Any time beyond 12 hours worked during a single workday.
The overtime laws California has adopted are very similar to those in the federal Fair Labor Standards Act (FLSA).
In fact, the biggest difference is that California provides more protections by including workday overtime (anything beyond eight hours) in addition to workweek overtime.
California labor law code 510 states that:
(a) Eight hours of labor constitutes a day’s work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee. Nothing in this section requires an employer to combine more than one rate of overtime compensation in order to calculate the amount to be paid to an employee for any hour of overtime work.
Calculating the Regular Rate of Pay
Not everyone gets paid the same. Some employees are salaried, some receive hourly pay, some work on commission, and some receive piecework compensation.
Employees under any one of the previously mentioned pay structures can be eligible for overtime pay. However, the method for determining the regular rate of pay can be different for each kind of worker.
To calculate your regular pay rate for applying California overtime laws, you can use the following methods:
- Hourly employees — your hourly pay plus your shift differentials and the hourly value of any non-hourly pay;
- Salaried employees — to get your yearly salary, multiply your monthly pay by 12, then divide by 52 to get your weekly pay, and divide by 40 hours; and
- Employees paid by commission or paid according to how many pieces of work product they produce (piecework) — you can use your rate for producing a piece of work or your commission rate as your regular rate, or you can divide the total of your earnings for the week (including what you earned during overtime hours) by the total hours you worked that week.
If you’re someone paid by commission or piece rate, there are a couple of ways to calculate your overtime pay.
Your first option for calculating overtime pay as a commission or piecework employee
If your piecework rate or commission rate is your regular rate, you get 1.5 times your regular rate for your first four hours of overtime in a workday. You get double your regular rate for work time exceeding 12 hours.
Your second option for calculating overtime pay as a commission or piecework employee
If you calculate your regular piecework or commission rate by dividing your total wages per week by your total hours per week, calculating your overtime pay is a little trickier.
Under this rate, you typically get an additional 50% of your rate for your first four hours of overtime in a workday. You also get an extra full rate of pay for work time exceeding 12 hours. This is best understood with an example.
Imagine you normally make chairs for eight hours a day, and your boss pays you $50 per chair. Now imagine that in a five-day workweek, you worked nine hours on Monday, eight hours on Tuesday, 14 hours on Wednesday, five hours on Thursday, and four hours on Friday. You produce 20 chairs during this time.
This means, at your piece rate, you earned $1,000 ($50 x 20 chairs) during a 40-hour workweek. For your regular rate, divide the $1,000 earned for the chairs you produced by the 40 hours you worked.
Your regular rate of pay is $25 per hour. As a pieceworker, you are entitled to 50% of your regular rate for working over eight hours and up to 12 hours.
In our example, 50% of your regular rate is $12.50 per hour, and you’re entitled to an additional $12.50 for working one hour of overtime on Monday. You’re also entitled to $12.50 for the first four hours of overtime you worked on Wednesday, which equals an additional $50.
As a piecework employee, you’re entitled to receive an additional, full pay rate for working time that exceeds 12 hours per day. Under our example, you get an additional $50 ($25 x 2) for the 13th and 14th hours you worked Wednesday.
There’s no overtime on Thursday and Friday because you worked less than eight hours. In this scenario, you earn a total of $1112.50: your $1,000 base pay of $1,000 for making 20 chairs, and $112.50 for your overtime.
Understanding Workdays and Workweeks
Legally speaking, “workday” and “workweek” have specific meanings when it comes to California state law on overtime.
The California Labor Code defines a workday as any consecutive 24-hour period established by the employer that starts at the same time each day.
Keep in mind that the beginning of an employee’s shift is not necessarily the beginning of an employee’s workday.
Similarly, a workweek is any consecutive seven-day period starting on the same calendar day; workweeks break down into seven 24-hour periods, or a regularly recurring period of a total of 168 hours.
Employees Eligible for Overtime
In California, all employees are eligible for overtime pay unless they fall within an exemption. Accordingly, this means that California’s overtime laws protect all employees except:
- Independent contractors,
- Exempt employees, and
- Employees who agree to an “alternative workweek schedule.”
Don’t jump to the conclusion that you’re ineligible too quickly, because you could be wrong. Whether you’re eligible for overtime pay can depend on a number of different factors.
If you’re unsure about your eligibility for overtime pay and the amount, speaking to an attorney is your best option.
Independent Contractors
Independent contractors are not eligible to receive overtime pay, but sometimes employers misclassify eligible employees as ineligible independent contractors.
If you’re unsure whether or not you’re an independent contractor, you can use the “ABC test” to figure it out.
Under the ABC test, you’re an independent contractor only if:
- The entity you work for doesn’t control the performance of your work in the contract language and in reality;
- The work you perform for the hiring entity is outside the usual course of their business (e.g., an entity that’s in the business of programming video games and hires you to repair shingles on their roof is hiring your for work outside the usual course of their business); and
- You customarily perform work in an independently established trade, business, or occupation, and the hiring entity hired you to perform that kind of work.
Remember that it’s not enough that a contract you have with a hiring entity says that you’re free from control. If the hiring entity controls your work in fact, you’re not an independent contractor.
If all three statements above don’t apply to the work you do for a hiring entity, you’re that entity’s employee, and you might be entitled to overtime compensation.
Alternative Workweeks
If an employee has to work more than eight hours in a 24-hour period during their regularly scheduled workweek, they are working an alternative workweek schedule.
A typical example of an alternative workweek is a workweek that’s only 4 days long, and each regular workday is 10 hours long. Alternative workweek schedules are treated a very specific way under California’s labor laws.
You’re not necessarily entitled to overtime if your schedule requires you to work between eight and 12 hours each day.
In many cases, if your alternative workweek doesn’t require you to work more than 10 hours a day and 40 hours a week, your employer doesn’t have to pay you overtime for the eighth and ninth hours that you work a day.
If you’re in healthcare, you don’t get four hours of overtime per day in an alternative workweek that requires workdays that are 12 hours or less.
But for many industries, even if you have a regular 10-hour workday, overtime laws in California require your employer to pay you double your regular rate for working time that exceeds 12 hours.
In many cases, employers must also pay overtime if alternative workweek employees have to work more than 40 hours, and or have to work more than their regularly scheduled number of days.
If your regular schedule required you to work 10 hours a day for four days, and your employer made you work an additional six hours on a fifth day that week, they would typically have to pay you overtime for those six extra hours.
Generally, your employer would also have to pay you double for any working time that exceeded eight hours on that fifth day.
Affected employees need to vote on alternative workweeks for them to be acceptable under the California laws on overtime. Before an alternative workweek goes into effect, the employer makes the proposal for the schedule.
Then, two-thirds of affected employees must accept the proposal in a secret ballot vote. The employer might have to make reasonable religious or other accommodations for certain employees who can’t adhere to such a schedule. And an employer can’t reduce employee pay when adopting the schedule.
An employer also has to report the results of an alternative workweek vote to the Division of Labor Standards Enforcement within 30 days of the final results. If you’re unsure whether you’re subject to such a schedule, or otherwise exempt, you should contact a California wage and hour attorney.
What Are Exempt vs. Non-Exempt Employees?
In the United States and California, there are two main categories of employee: exempt and non-exempt. These terms refer to an employee’s status under the federal Fair Labor Standards Act and whether that federal law applies to them.
If the law does apply, the employee is “non-exempt”; if the law does not apply, the employee is “exempt.”
California Overtime Exemptions
There are several important exemptions to CA labor law overtime. Whether you are exempt or non-exempt depends explicitly on the definitions found in the California Labor Code. Your employer cannot make you sign an agreement to be an exempt employee.
Employees who fall within any of the following categories are exempt from California’s overtime laws:
- Executives, administrators, and professionals as those titles are defined by California law;
- Computer software employees;
- State and local government employees;
- Traveling salesmen;
- Employees who are the parent, spouse, child, or adopted child of the employer;
- Employees participating in a national service program;
- Taxi drivers and other drivers regulated by the U.S. Department of Transportation or the California Code of Regulations;
- Employees covered by a valid collective bargaining agreement;
- Commissioned employees earning 1.5 times minimum wage;
- Student nurses attending an accredited school;
- Certain airline employees;
- Fishing boat crew members;
- Professional actors;
- Motion picture projectionists;
- Certain radio and television studio employees;
- Employees engaged in primarily “intellectual, managerial, or creative work”; and
- Babysitters.
Keep in mind that each of these categories has specific criteria the employee must meet before California overtime exemptions include them.
Earning Time Of Instead Of Overtime Pay
Employment contracts waiving overtime pay are not valid, but if you prefer, you can receive compensating time off instead of overtime pay for your hours.
To receive compensating time off instead of overtime, you must:
- Have a prior written agreement with your employer about it;
- Not already have 240 or more hours of compensating time off;
- Have made a written request for compensating time off in place of overtime pay; and
- Have a regular workweek that’s not less than 40 hours.
You must receive 1.5 hours of compensating time off for each hour of overtime. You must receive more hours if your overtime compensation should have been more than 1.5 times your regular rate of pay.
How Can a California Employment Lawyer Help?
An employer’s neglect or refusal to pay an employee their earned wages often places the employee in an extremely difficult position.
In addition to the financial struggle that may occur, the employee must also risk retaliation or discrimination for speaking up about the unfair practices.
An attorney can help reduce some of this burden by guiding you through the process and making sure you fully understand your rights as an employee.
Workplace Rights Law Group can help you collect evidence to build your case and advise you of your options moving forward.
If a lawsuit is necessary—either to recover your lost wages or to fight back against discrimination—we can help with that too.
Frequently Asked Questions About California Overtime
Yes. Employers must pay their employees for all overtime worked, even if that overtime was unauthorized. This applies only when the employer “knew or should have known” that the employee would be working.
In this situation, keep in mind that the employer may still discipline the employee for violating applicable company policies relating to overtime.
Are Salaried Employees Exempt from OT Rules in California?
Not necessarily. Despite a common misconception, receiving a salary does not automatically exempt you from overtime pay. As explained above, you are exempt from CA overtime only if you fall within one of the specific exemptions to California’s labor code.
Can My Employer Require Me to Work Overtime?
Yes. Employers are responsible for setting their employees’ schedules, including overtime. As long as they pay the appropriate overtime wages, employers can require their employees to work overtime.
Can I Get Fired If I Refuse to Work Overtime Hours?
Yes. In most cases, employers may schedule overtime as long as they pay the proper wages, and an employee who refuses to work that scheduled time may face discipline or termination.
However, there is one exception: employers may not require their employees to forego a day of rest (although employees may make that decision themselves).
How Many Hours Is “Full-Time” Employment? “Part-Time” Employment?
Typically, you are employed full time if you work between 30 and 40 hours a week. By contrast, part-time employees are those scheduled to work less than 30 hours per week.
My Employer Has Not Paid Me My Overtime Wages; What Should I Do?
Failure to pay owed overtime wages is a form of wage theft. If your employer is not paying you overtime wages you’ve earned, you will have to file a claim with the Division of Labor Standard Enforcement.
For violations of California overtime laws, you have three years to file your claim. Depending on the circumstances, you may also be able to file a civil lawsuit to recover your lost wages. In either case, you should speak with an attorney.
What Can I Do If My Employer Retaliates Against Me for Filing a Wage Claim?
Retaliation in response to wage claims is an actionable form of discrimination. Our workplace discrimination lawyers can help you file a complaint or lawsuit and recover compensation.
Contact Our Wage and Hour Attorneys Today
At the Workplace Rights Law Group, our attorneys have nearly 75 years combined experience representing clients in employment law cases.
If you’ve experienced wage theft, contact us today online or by phone at (818) 844-5200 for a free case review and consultation.
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Theo Khachaturian
Theo is a trial & appellate lawyer whose practice has emphasized wage-and-hour class actions, business disputes, wrongful termination, discrimination, harassment, and intellectual property theft. He has tried civil cases and argued before various California Courts of Appeal.