In California, the general overtime provisions are that a "nonexempt" employee 18 years of age or older, or any minor employee 16 or 17 years of age who is not required by law to attend school and is not otherwise prohibited by law from engaging in the subject work, shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless he or she receives one and one-half times his or her regular rate of pay for all hours worked over eight hours in any workday and over 40 hours in the workweek (or double time as specified below).
Eight hours of labor constitutes a day's work, and employment beyond eight hours in any workday or more than six days in any workweek requires the employee to be compensated for the overtime at not less than:
One and one-half times the employee's regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and
Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.
There are, however, a number of exemptions from the overtime law. An "exemption" means that the overtime law does not apply to a particular classification of employees. There are also a number of "exceptions" to the general overtime law stated above. An "exception" means that overtime is paid to a certain classification of employees on a basis that differs from that stated above. In other words, an exception is a special rule. Consult with an experience employment law attorney for those employees not entitled to overtime pay.
Q. What is the "regular rate of pay," and how is it determined?
A: Overtime is based on the regular rate of pay, which is the compensation an employee normally earns for the work he or she performs. The regular rate of pay includes a number of different kinds of remuneration, such as hourly earnings, salary, piecework earnings, and commissions. In no case may the regular rate of pay be less than the applicable minimum wage.
Ordinarily, the hours to be used in computing the regular rate of pay may not exceed the legal maximum regular hours which, in most cases, is 8 hours per workday, 40 hours per workweek. This maximum may also be affected by the number of days one works in a workweek. It is important to determine what maximum is legal in each case.
Consult with an experienced employment law attorney on alternative ways to calculate the regular rate of pay for employees paid on an hourly rate, on a salary, piece work or commission, or by two or more rates during the workweek.
Q. If an employee works unauthorized overtime is the employer obligated to pay for it?
A. Yes, California law requires that employers pay overtime, whether authorized or not. California's laws require that the employee be compensated for any hours the employee is "suffered or permitted to work, whether or not required to do so."
Q. Is a bonus included in the regular rate of pay for purposes of calculating overtime?
A. Nondiscretionary bonuses are included in determining the regular rate of pay for computing overtime when the bonus is compensation for hours worked, production or proficiency, or as an incentive to remain employed by the same employer. Consult an experience employment law attorney on how to properly calculate bonuses for computing overtime.
IQ. Are any amounts excluded from the regular rate of pay?
A: Yes, there are certain types of payments that are excluded from the regular rate of pay. Consult an experienced employment law attorney on examples of certain payments that are excluded from the regular rate of pay.
Q. Are salaried employees entitled to overtime?
A. Salaried employee must be paid overtime unless they meet the test for "exempt" status as defined by federal and state laws, or unless they are specifically "exempted" from overtime by the provisions of California law. Consult an experienced employment law attorney on whether a salaried employee is exempted from overtime pay.
Q. Can an employer require an employee to work overtime?
A. Yes, in general an employer may dictate the employee's work schedule and hours. Additionally, under most circumstances the employer may discipline an employee, up to and including termination, if the employee refuses to work scheduled overtime. However, an employer cannot discipline an employee for refusing to work on the 7th day in a workweek and is subject to a penalty for causing or inducing an employee to forego a day of rest. An employee may, however, choose independently not to take a day of rest and work on the 7th day.
Q. If an employee works Monday, Tuesday, Wednesday, Thursday and Saturday, 8 hours each day, but was out ill all day Friday, are they entitled to any overtime pay?
A. No. Overtime is calculated based on hours actually worked, and the employee worked only 40 hours during the workweek.
Another example of where the employee gets paid their regular wages but the time is not counted towards overtime is if the employee gets paid for a holiday but do not work that day. In such a case, the time upon which the holiday pay is based does not count as hours worked for purposes of determining overtime because no work was performed.
Q. When must employees be paid for the overtime hours they work?
A. Overtime wages may be delayed to the payday of the next following payroll period, but the straight time wages must still be paid in the pay period in which they were earned; or, in the case of employees who are paid on a weekly, biweekly, or semimonthly basis, not more than seven calendar days following the close of the payroll period.
Q. Can an employee waive their right to overtime compensation?
A. No, California law requires that an employee be paid all overtime compensation notwithstanding any agreement or "waiver" to work for a lesser wage.
Q. What action can an employee take if the employer does not pay their overtime wages?
A. The employee can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner's Office), or file a lawsuit in court against the employer to recover the lost wages. Additionally, if the employer no longer works for this employer, the employee can make a claim for the waiting time penalty.
Q. What is the procedure that is followed after an employee files a wage claim?
A. Consult an experienced employment law attorney on the procedures that are followed after a claim is filed with a the Labor Commissioner's Office.
IQ. What can an employee do if their employer retaliates against them after the employee informs the employer that they are going to file a wage claim for unpaid overtime?
A. If an employer discriminates or retaliates against an employee in any manner (for example, discharges the employee) because the employee filed a wage claim or threats to file a wage claim with the Labor Commissioner, the employee can file a discrimination-retaliation complaint with the Labor Commissioner's Office, file a lawsuit in court against your employer.
If you have any questions about overtime pay, or if you need legal representation after a claim is filed, please contact me for a FREE confidential consultation at (916) 333-4653 or Stephen_Fiegel_Esq@comcast.net.
Copyright Law Office of Stephen Fiegel – All rights reserved.