LAWSUITS NEWS & LEGAL INFORMATION

California Overtime Violations FAQ

What is overtime?

Generally, unless you are properly classified as exempt, any time that is worked past 8 hours in one shift, over 40 hours in one work week, or working 6 days in one work week is considered overtime work. This time is to be paid at the overtime rate. Hours worked in excess of 8 in one day are paid at time and a half. Hours worked in excess of 40 in a week are paid at time and a half. California labor code requires that all hours worked on the 7th consecutive day of a work week be paid at 1.5 times an employee's regular rate of pay. In addition, hours worked over 12 in one day, or hours over 8 worked on the 7th consecutive day in a week are paid at 2 times an employee's regular rate of pay.

What is considered a "work week?"

The work week is a period of seven consecutive 24-hour days that begins on the same day each week. It is not necessarily Sunday to Saturday. The regular work week is fixed by your employer who will notify you of these specifications upon employment.

I worked 10 hours a day over 4 days. Am I entitled to overtime? My employer says I am not entitled to overtime because I didn't work more than 40 hours in one week.

According to the California labor law, you are entitled to receive overtime pay for working over 8 hours in a day or 40 hours in a week.

I work an Alternate Work Week. Does the 8-hour day rule still apply?

If you have alternative work schedules, such as 10 or 12-hour shifts, you need to determine the rules which apply to your situation. If your company has instituted a bona fide alternate work week in which you normally work 10 hour days, 4 days a week, the overtime is after 10 hours rather than 8, but still after 40 hours in the week.  This alternate work week must meet certain formalities and can not be done on a person by person basis.

What if I work overtime without my employer's permission?

The employer must pay any overtime wages to the employee even if the overtime was not approved.

Can my employer require me to work overtime?

Your employer can require you to work specific hours and schedules according to the requirements of the job. If you refuse to work overtime hours, your employer may discipline and even fire you.

How long does it take to get paid overtime?

Overtime wages must be paid no later than the payday for the next regular payroll period after which the overtime wages were earned.

What does "exemption" or being "exempt" mean?

An "exemption" means that the overtime law does not apply to a particular classification of employees--those employees considered "exempt" from overtime pay--and there are a number of exemptions from the overtime law. To be exempt, your job description must meet certain criteria; many employees, such as computer programmers, are misclassified as exempt and therefore are owed overtime pay.

My employer told me that I am exempt but I don't supervise anyone. How can I determine whether I have been misclassified as exempt?

Your employer should inform you when you are hired whether you are eligible for overtime pay or not, ideally in a written contract along with your job description. If you are concerned that you should be receiving overtime, or that you've been misclassified as exempt, you can consult the California Department of Labor for more information about the labor laws. You should also ask an experienced wage and hour attorney to evaluate your situation and decide if your employer has violated the state's labor laws.

When I was hired, I signed a statement saying I am exempt. My supervisor told me that I don't get overtime. Is that right?

Not necessarily. It doesn't matter what you signed about being exempt or entitled to overtime. Your actual job duties will determine whether you are exempt. If your job duties and salary don't meet all the requirements for an exemption, you are entitled to overtime.

I work part time and am paid a monthly salary. Does that exclude me from overtime?

Unless you are exempt, you are required to be paid for all overtime worked. Even if you are paid on a salary basis, you can still be entitled to overtime, regardless of the amount of your salary. And even if your company labels you a "part time" employee, or an "independent contractor," you are likely entitled to overtime pay. The only people who are not entitled to overtime pay are those people that meet all of the requirements for one or more of the narrowly defined exemptions, even if you supervise other people. An experienced wage and hour attorney can evaluate your situation and determine whether you meet the criteria to be able to collect overtime pay.

I supervise two people. Does that mean I fit into the 'Executive Exemption'?

Not necessarily. Although one of the requirements for the executive exemption is that you must supervise at least two people, this requirement is only one of many.  The California labor law has regularly been interpreted to find that supervising only two people would rarely require sufficient supervisory time to satisfy the exemption.

Typically, only executives of the company will qualify for it. If you are a team lead, project manager, or development manager, you can still be entitled to overtime.  Job titles do not determine whether or not you are exempt; an attorney can review your job description--compared to the job duties you actually perform-- to determine whether or not you are entitled to overtime--your right to overtime will depend on what you actually do for your job.

As well, California labor law requires overtime for managers who spend more than 50 percent of their time doing the same work as their subordinates.

I'm a truck driver. Does that mean I am exempt?

Under California law, many truck drivers are exempt from California overtime, and the California Labor Board will tell you that you are not entitled to overtime. If you don't drive a truck across state lines, however, and the shipments that you are transporting are not part of interstate commerce, then you may be entitled to overtime under federal law.

Does travel time count as overtime?

You are not entitled to pay for your daily commute to and from your place of business. However, any travel from your initial place of business to another work place is considered work time. As well, any travel out of town, including time driving to the airport, sitting on the airplane, or riding in a taxi is considered work time, no matter what time of the day or night, or weekend. Unless you are exempt from the wage and hour laws, you are entitled pay for these hours and overtime pay, if applicable.

What Can I Do If My Employer Doesn't Pay Me My Overtime Wages?

You can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner's Office), or you can file a lawsuit in court against your employer in to recover the lost wages. Additionally, if you no longer work for this employer, you can make a claim for the waiting time penalty pursuant to Labor Code Section 203.

Why do I need an attorney when I can just file an overtime claim with The California Labor Commission?

The California Labor Commission handles claims for unpaid wages, overtime, and other labor violations through the Division of Labor Standards Enforcement (DLSE), also known as the "Labor Board." Before you file with the Labor Commissioner, however, you should be aware that they cannot protect all of your rights, and your actual claim could likely be a lot more with the help of a California labor attorney than what the Labor Commissioner could possibly award you.

Also, unless you are working under the terms of a written employment contract that provides for overtime, the Labor Commissioner can only get you unpaid overtime going back three years. An attorney can assert your right to go back four years. The reason for this is that the Labor Commissioner can only enforce California Labor Law. Under California Labor Law, the Statute of Limitations for unpaid overtime is three years. But under a different section of the law that covers unfair business practices, you can recover unpaid overtime going back four years.

Furthermore, an experienced wage and hour attorney will help you to sue for civil penalties for all labor violations committed by the employer. This means that even if you have a small claim, you can sue for penalties for all the violations in the company. You get to keep 25 percent of the penalties awarded and the State of California will get the other 75 percent. Not only are these penalties often substantial; they also provide an excellent way to get employers to comply with the California labor laws by providing an incentive to sue. These laws can be used very effectively against employers who violate the California labor code.

I won a significant amount at the Labor Commission, but when can I get my overtime money from my former employer?

Even if you do win at the Labor Commission, the employer can still appeal that decision, and the more you are awarded, the more likely your employer will appeal. At this point, your case goes to court and it is in your best interest to get an attorney. In addition, you don't get your money until you win the appeal in court, which means you may be waiting a long time to get anything by going to the California Labor Board.

I am paid on commission so I don't get paid overtime, right?

Wrong. Many commissioned workers are entitled to overtime. You are not entitled to overtime if you are an outside salesperson, or if you work in retail sales and at least half of your total earnings come from commissions and you make at least 1 1/2 times the current minimum wage. If you work in sales other than retail, however, such as a loan officer or a stock broker, you are most likely entitled to overtime.

How long does it take to get an Overtime Court Case?

Typically, for labor commission hearings and for court cases it takes approximately one year to complete., If you have a strong case, however, the company will likely want to settle sooner than later because if you win in court, they have to pay your attorney fees.

How much will a California Labor Law Attorney Cost?

Generally, most attorneys work on a contingency basis: there is no fee unless there is a recovery. And if you win in court, the company has to pay attorney fees.

Can I file an overtime complaint against my current employer?

You can file an overtime complaint against your current employer, but you might want to talk to an attorney beforehand to determine whether or not you have a legitimate case. It is against the law for an employer to retaliate against you but if you don't have a case, it might cause an uncomfortable work environment. The best thing is to have your attorney talk with the company's attorney first.

I think my employer will retaliate against me if I file a wage claim for unpaid overtime. What can I do?

If your employer discriminates or retaliates against you in any manner, including termination, you can file a discrimination/retaliation complaint with the Labor Commissioner's Office. Alternatively, you can file a lawsuit in court against your employer.



SOURCES

The California Department of Industrial Relations (www.dir.ca.gov/dlse/faq_overtime)
Workforce Software (www.workforcesoftware.com/resources/ca)
LawyersandSettlements (www.lawyersandsettlements.com/case/overtime_california.html)
Legal Aid Society (www.las-elc.org/)