Employees have rights under federal and state law when employers fail to note or compensate them for overtime hours worked. Though federal and state overtime laws differ and even conflict, employees are protected by the law that is most favorable to them. In general, labor law in certain states, such as California, is more protective of workers than is federal law under the Fair Labor Standards Act (FLSA).
Typical Overtime Law Violations
Overtime issues often come up when:
- An employer has improperly classified an employee as exempt, such as under the administrative, professional, or executive exemptions, and has thus failed to pay overtime
- An employer has improperly classified an employee as in independent contractor, and has thus failed to pay overtime
- An employer has failed to credit an employee with eligible time they worked, such as off-the-clock work, and this eligible time pushes the employee’s total hours over 40 per week, after which overtime rates are required
Are You Owed Overtime Pay?
Understand your rights as a worker. Call or message us to speak with an employment attorney about your potential wage claims. All consultations are free and confidential.
We Get Results for Employees
|Acosta||$9.9 million for unpaid overtime and business expenses|
|Spansion||$8.5 million for employees laid off without proper notice|
|Masco||Backpay for workers who were misclassified|
|Fleetwood||Backpay for employees laid off without proper notice|
|Cosmo||$1 million for merchandisers who were not compensated for off-the-clock work|
|First Franklin||Backpay for workers who were not paid overtime|
California Overtime Law
In California, nonexempt employees are entitled to overtime compensation at 1.5 times their regular rate of pay when:
- They work more than 8 hours in a single day
- They work more than 40 hours in a single week
- They work on a seventh consecutive day (usually Sunday) during the same week
In addition, California nonexempt employees are entitled to overtime compensation at double their regular rate of pay when:
- They work in excess of 12 hours per day
- They work more than 8 hours on a seventh consecutive day of the week (typically Sunday)
(Overtime pay for working a seventh consecutive day is only available if the employee has worked for some period of time during each of the six previous days.)
|Overtime Rate||When the Rate Applies|
|1.5x normal rate||Hours worked over 8 per day, but less than 12 per day|
|The first 8 hours worked on a 7th consecutive day of the week (Sunday)|
|2x normal rate||Any hours worked over 12 per day|
|Any hours worked over 8 on a 7th consecutive day of the week (Sunday)|
Regular Rate of Pay
Employers may calculate the “regular rate of pay” in California using federal standards or the recommendations of the California Department of Labor Standards Enforcement (DLSE).
- Federal Calculation Method
The federal Fair Labor Standards Act (FLSA) permits employers to calculate the regular rate of pay by dividing the employees total pay by the total number of hours they worked (including overtime hours).
- DLSE Calculation Method
The DLSE takes the position that employers must calculate the regular rate of pay by dividing the employee’s total pay by all non-overtime hours worked. The DLSE calculation method results in a larger number for the regular rate of pay. But, California courts have held that employers may use either the federal or DLSE method in calculating the regular rate of pay.
California employers can mandate that employees work overtime hours. California labor law does not prevent employers from requiring employees to work overtime; the overtime laws only require that employees be paid extra money for working overtime (either time-and-a-half or double pay).
California law also restricts how many consecutive hours an employer can require an employee to work without a break, including requirements of paid rest and unpaid meal breaks.
Outside California labor law, sometimes employment contracts (such as union contracts) will prohibit employers from requiring overtime work over a certain number of hours.
Working Overtime Without Authorization
In California, employers must compensate employees for all hours worked, regardless of whether the employer authorized the employee to work those hours. An employer may discipline or terminate an employee for working unauthorized hours, such as for violating company policy, but the employer must still compensate the employee for any hours worked, whether authorized or not.
However, employers do not have to compensate for overtime hours if they have no knowledge that the employee worked overtime and the employee never notified the employer of the extra hours worked.
California does not recognize the validity of waivers of an employee’s right to the overtime rate of compensation.
As a result, some employers misclassify workers as independent contractors, so they will not have to pay them overtime compensation.
California Overtime Cases
Unpaid Overtime at a Gas Station
The owner of a gas station hired a new employee and told this employee that he would be paid a salary of $1,000 a month, which was to include both regular and overtime pay. The new gas station attendant worked 10 hours a day, Monday through Friday, and 9 hours on Saturday. After working dutifully at the gas station for about 2 years, the gas station attendant quit and sued his employer for unpaid overtime compensation, arguing that the $1,000 a month was his regular rate of pay, and that he should have been paid time-and-a-half pay for the two overtime hours he worked each Monday through Friday, and the one overtime hour he worked each Saturday. The California Court of Appeal agreed with him, and awarded him $18,968.21 in unpaid overtime compensation.
Employee Misclassification at Bank of America
Property value appraisers filed suit against their employer, Bank of America, for improperly classifying them as exempt employees under California law and demanded that they be paid overtime compensation for their work. A federal district court held that BoA had improperly classified the appraisers as exempt, and required BoA to issue them OT pay.
Unpaid Overtime at Farmers Insurance
Claims representatives hired to handle claims in various Farmers Insurance claims departments sued Farmers for failing to pay them overtime compensation. Farmers argued that these salaried employees were exempt from California overtime protection. The court, however, held that the claims representatives were non-exempt, and Farmers was thus required to provide OT compensation to these workers.
Federal Overtime Law
Federal labor law is governed by the Fair Labor Standards Act (FLSA). The FLSA requires that employees who work more than 40 hours per week receive overtime pay at a rate of one-and-a-half times their regular rate of pay.
Unlike California law, however, the FLSA does not require that employers provide double pay for hours worked beyond a certain threshold, nor does the FLSA require overtime compensation for a seventh consecutive day of work.
Additionally, the FLSA may be less protective of workers because some of its exemptions are broader than the exemptions under California law.
FLSA employment lawsuits are sometimes less favorable to workers than lawsuits under California’s overtime protections because FLSA lawsuits are opt-in, which means that a notice must be sent to every single worker and they must write back in order to be included in the lawsuit.
In contrast, labor suits under California overtime law are opt-out, which means that if the employees who brought the lawsuit win a monetary judgment or settlement, a notice will be sent out to other employees asking them if they prefer to share in the recovery in the lawsuit or opt out (and preserve their right to sue on their own, subject to the statute of limitations).
Federal Overtime Cases
Un-tracked and Unpaid Overtime for U.S. Customs Enforcement Employees
Dog handlers who worked for the United States government in customs enforcement sued the federal government for failing to pay them time they spent preparing training aids for their dogs. The dogs need to be trained on a regular basis to alert at the smell of narcotics, and the training requires the preparation of special towels, scented with narcotics and hidden for the dogs to later find. The government did not pay the dog handlers for preparing or laundering the special towels. The court held that time spent preparing and cleaning the special towels was compensable under the FLSA, and since this time was spent on top of an already full (40 hour) workweek, the dog handlers were entitled to overtime compensation.
Off-the-Clock Work & Unpaid Overtime for NY Policeman
A police officer in the canine unit sued the New York town that employed him for failing to pay him overtime pay for off-the-clock work he performed in training, exercising, grooming, and feeding his patrol dog. The court held that this time was compensable time under the FLSA and the town was required to pay OT for hours that canine patrol officers spent caring for their police dogs.
Waiting Time & Unpaid Overtime for Oilfield Surveyor
An oil well surveyor who worked for Schlumberger, the world’s largest oilfield surveying company, sued his employer for failing to pay him overtime for time he spent waiting in the employer’s garage for mechanics to service his surveying equipment and vehicle, and for time spent driving from the garage to the well locations. The court held that this time was compensable under the FLSA and required Schlumberger to pay OT.
Our Employment Experience
Our employment attorneys have been representing classes of employees in state and federal litigation against their employers for over 20 years.
We have successfully litigated employment cases concerning unpaid overtime, meal breaks, and business expenses; employee misclassification; and mass layoffs without proper notice, recovering millions of dollars on behalf of our clients against some of the world’s largest corporations.
Girard Gibbs has been recognized a Tier-1 law firm by U.S. News – Best Lawyers consecutively since 2013, and founders Daniel Girard and Eric Gibbs have been named among the Best Lawyers in America consecutively since 2012.
|Eric Gibbs||Dylan Hughes||Steven Tindall||Michael Schrag||Steve Lopez||Linda Lam|
The “regular rate of pay” includes wages (or salary) and incentive pay (such as commissions or non-discretionary bonuses). Any payments from the employer that are not tied to an objective measurement are excluded from the regular rate of pay, such as gifts, bonuses, tips from customers, and expense reimbursements.
Many salaried employees are exempt from overtime protection, such as under the professional, executive, and administrative exemptions. But for nonexempt salaried employees, the regular rate of pay is salary plus non-discretionary bonuses divided by total hours worked. If the resulting hourly rate is lower than minimum wage, then minimum wage is used as the regular rate of pay for calculating overtime.
Salaried workers qualify for overtime pay as long as they are nonexempt. Salaried workers are nonexempt if they fall below a certain salary threshold ($455 per week under federal law and $800 per week under California law). Salaried workers above this threshold may fall into one of the following exemptions:
- Executive exemption
- Administrative exemption
- Outside sales exemption
- Inside sales exemption
- Professional exemption
- Computer professional exemption
If none of the exemptions apply, you are entitled to overtime pay, despite being a salaried employee.
Your employer must pay you for overtime worked no later than the payday for the following pay period in which the overtime was worked. For instance, if you are paid weekly and work overtime during the first week of the month, your employer may hold those overtime payments until the payday for the second week of the month (which would occur within the third week of the month).