UNPAID OVERTIME

CALIFORNIA OVERTIME LAWS

California law requires that hourly employees are paid overtime wages for overtime work.  Every non-exempt (or hourly) employee in San Diego and throughout California must be paid overtime at time-and-a-half or double time depending on the number of hours worked.  If a current or former employer fails to pay overtime in accordance with California law, they are liable for the amount of unpaid overtime, statutory penalties, interest and attorney’s fees and costs.  Separate meal and rest period requirements also may apply depending on the amount of overtime worked.

HOURLY EMPLOYEES MUST BE PAID OVERTIME

Non-exempt employees are workers who are paid by the hour and do not receive a salary.  Non-exempt employees who are not on a lawful alternative work schedule must receive overtime pay at a rate of one-and-a-half times the employee’s regular rate of pay based on the number of hours worked.  Employees that are misclassified as “exempt” or as independent contractors are also required to be paid overtime and may be entitled to the amount of unpaid wages and related penalties and damages.

OVERTIME RATES IN CALIFORNIA

Overtime at a rate of time-and-a-half is required for:

  • More than eight hours of work in a workday
  • More than 40 hours of work in a workweek
  • Work on the seventh consecutive in a workweek

Overtime at a rate of double time is required for:

  • More than 12 hours of work in a workday
  • More than eight hours of work on the seventh day of a workweek

UNAUTHORIZED OVERTIME MUST BE PAID

The law requires time-and-a-half and double time overtime pay even if the overtime is not required if the employer permits or otherwise knows that the employee works beyond his or her regular hours.  Overtime must be paid regardless even if it is not specifically authorized.  Employers often require that employees complete all work within a specified amount of time, but then refuse to pay overtime. This is unlawful.  California law requires payment for all hours worked.

OVERTIME WAIVERS ARE INVALID

Agreements for an employee to “waive” overtime pay are unenforceable and, notwithstanding the agreement, the employee must be paid overtime for the number of hours worked.  Alternative work schedules, lawfully entered into between the company and workforce provide a limited exception to this strict requirement.  California employers cannot waive required employee protections, including overtime pay, through separate contractual agreements.

REGULAR RATE OF PAY CALCULATION

Despite common belief, the calculation for double time and time-and-a-half isn’t a simple multiplication of the employee’s normal hourly rate.  Overtime must be paid based on the employee’s “regular rate of pay.”  An employee’s overtime rate must include not only the employee’s regular hourly wages, but also pay for shift differentials, commissions, pierce-rate pay and certain bonuses or incentive awards.  California law also requires employers to use a “weighted average” if an employee receives different hourly rates during a workweek, which increases the amount of overtime owed.

In summary, the following wages must be included in an employee’s overtime pay under California’s regular rate of pay requirement:

  • Shift differentials
  • Commissions
  • Piece-rate pay
  • Certain bonuses
  • Incentive awards

Certain sums are excluded from the regular rate of pay.  Employers do not need to include the cost of gifts, expense reimbursements, holiday pay or discretionary bonuses into an employee’s regular rate of pay.

RIGHT TO RECOVER UNPAID WAGES AND PENALTIES

In addition to the amount of unpaid overtime, employees may also recover penalties and damages based on the employer’s failure to comply with wage statement requirements.  These penalties can be significant, especially when filed as part of a class action lawsuit on behalf of all similarly situated employees.

FAILURE TO PAY OVERTIME DAMAGES

  • Payment of unpaid overtime
  • Interest on the amount owed
  • Wage statement penalties (up to $4,000)
  • Waiting time penalties (up to 30 times the amount of unpaid wages owed)
  • Liquidated damages (double pay)
  • Punitive damages
  • Attorney’s fees and costs

COLLECT YOUR UNPAID OVERTIME

Most employees embrace the opportunity to work overtime and expect to receive what they are owed.  Unfortunately, employees throughout San Diego and the Golden State are often paid less than what the law requires.  To find out whether you are being properly paid your overtime, or if you are owed more, contact us today so that we can review your work schedule and pay statements.