California Overtime Law Questions
In this article I answer the following questions: Am I entitled to overtime under California law? I'm not getting paid overtime, what can I do about it? How much should I be getting paid for overtime?
California overtime laws - everything you need to know about California Overtime
California law and Federal law concerning overtime are different. For most workers, California overtime law is better for them. So this discussion will mainly focus on California overtime law.
In California, overtime is any time or hours you work over eight (8) 8 hours in a day or forty (40) hours in a week. California Labor Code Section 510. In general, any work in excess of 8 hours in a workday must be compensated at a rate of no less than one and one-half of your regular rate of pay. California Labor Code Section 510.
Any work in excess of 40 hours in a workweek must be compensated at a rate of no less than one and one-half of your regular rate of pay. California Labor Code Section 510.
Stated differently, if you are an non-exempt worker in California, you are probably entitled to be paid overtime for all hours or time that you work over eight (8) hours in a day and over forty (40) hour in a week.
Any work in excess of 12 hours in a workday must be compensated at the rate of no less than twice your regular rate of pay. California Labor Code Section 510. Any work in excess of 8 hours on the seventh consecutive day of work in a workweek must be compensated at the rate of no less than twice your regular rate of pay. California Labor Code Section 510.
Overtime pay is said to be premium pay.
Generally, if you are a non-exempt employee, then you are entitled to overtime. If you are an exempt employee, then you are not entitled to overtime pay. These are also called “overtime exemptions.” I go into these in depth, later on this webpage.
Overtime, time and one half, and double time
When referring to overtime, most folks are referring to what is called the overtime rate of pay. In California (putting aside alternate workweek schedules ), the overtime rate that you are entitled to is “time and one half.” Or 1.5 times your regular rate of pay.
Under California law all hours worked over right (8) in a day or forty (40) in a week or worked on the 7th consecutive day of a work week must be paid at 1.5 times your regular rate of pay. This is called your overtime rate.
All hours worked over 12 in a day or hours over 8 worked on the 7th consecutive day in a week are paid at 2 times an your regular rate of pay. This is also called your double time rate.
Under California law, you can’t “agree” to accept less than minimum wage or the legal overtime compensation owed.
Bill Turley is frequently asked to testify before the California State Senate and
California State Assembly on wage and hour law
The Wage Orders and overtime
In California, the Industrial Welfare Commission (IWC) is responsible for setting overtime wages, hours and working conditions for workers. Labor Code Sections 1173, 1182, 1182.11, 1182,12, 1182.13. Please see here for more on California Wage Orders.
Not all non-exempt employees in California are subject to the over 8 hours a day and 40 hours a week overtime laws
For example, agricultural workers are entitled to overtime at one and one-half their regular rate of pay for all hours worked over 10 in a workday, more than 6 days in a workweek and during the first 8 hours on the seventh consecutive day of work in any workweek. Wage Order 14-2001(3)(c).
Another example is an optional 14-day work period is provided as an alternative to workweek for public housekeeping employees of licensed acute care or extended care hospitals. With this, an employer may enter into an agreement with its employees to pay one and one half times the regular rate of pay for hours worked in excess ot 8 per day and 80 per 14-day work period. Wage Order 5-2001(3)(D).
California overtime and public policy
An employee's right to wages and overtime compensation clearly have different sources. Straight-time wages (above the minimum wage) are a matter of private contract between the employer and employee. Entitlement to overtime compensation, on the other hand, is mandated by statute and is based on an important public policy.
The duty to pay overtime wages is a duty imposed by the state; it is not a matter left to the private discretion of the employer. Gould v. Maryland Sound Industries, Inc., 31 Cal. App. 4th 1137, 1147 (1995); Lab. Code, § 1173; Monzon v. Schaefer Ambulance Service, Inc. 224 Cal. App. 3d 16, 29 (1990).
California courts have long recognized that wage and hours laws 'concern not only the health and welfare of the workers themselves, but also the public health and general welfare. That is, many folks believe that 8 hours a day and 40 hours work is enough for anyone. And there should be an incentive to employers to have workers work only 40 hours a week. Overtime laws do this by, in effect, making employers pay you more for all hours over 8 in a workday and 40 hours in a week.
Another purpose of requiring payment of overtime wages is ' "to spread employment throughout the work force by putting financial pressure on the employer . . . ." ' Monzon v. Schaefer Ambulance Service, Inc. 224 Cal. App. 3d 16, 39 (1990).
Thus, overtime wages are another example of a public policy fostering society's interest in a stable job market. Earley v. Superior Court, 79 Cal. App. 4th 1420, 1430-1431 (2000).
Overtime and criminal law
The Legislature's decision to criminalize certain employer conduct reflects a determination that the conduct affects a broad public interest. Under Labor Code section 1199 it is a crime for an employer to fail to pay overtime wages as fixed by the Industrial Welfare Commission. Earley v. Superior Court, 79 Cal. App. 4th 1420, 1430-1431 (2000).
Workdays and workweek
California law defines “workday” as an consecutive 24 hour period, commencing at the same time each calendar day. California Labor Code Section 500(a).
“Workweek” and “week” mean any seven consecutive days, starting with the same calendar day each week. “Workweek” is a fixed and regularly recurring period of 168 hours, seven consecutive 24–hour periods. California Labor Code Section 500(b).
You are not entitled to overtime for holidays and weekends
Absent an agreement between you and your employer, neither California law nor federal law require employers to pay premium compensation for hours worked on holidays or weekends. Advanced-Tech Security Services, Inc. v. Superior Court, 163 Cal. App. 4th 700, 706 (2008).
Labor unions, CBA’s and overtime
You are not entitled to overtime if you are covered by a valid collective bargaining agreement (CBA) that expressly provides to all of the following:
1. The wages, hours and working conditions of the covered employees;
2. Premium wage rates for all overtime hours worked; and
3. A regular hourly rate of pay not less than 30 percent more than the state minimum wage.
California Labor Code Section 514.
The point that should be emphasized here is that all these requirements must be met. Don’t overlook the factual predicate. Meaning, that there must be a valid collective bargaining agreement (CBA). If the CBA is expired and you and your co-workers are “working without a contract,” it is my position that Labor Code Section 514 does not apply. I have seen this before. It happens.
In one recent case we represented unskilled workers that belonged to a labor union, but the workers were not getting paid less than 30 percent more than the state minimum wage. We were able to successfully settle the case for the workers for millions of dollars. The workers are very happy with the money they are receiving.
CALIFORNIA OVERTIME EXEMPTIONS
In California, employees are entitled to overtime pay if they work more than eight hours in a single day or more than 40 hours in a seven-day period.
However, not every employee qualifies for overtime pay. These are overtime exemptions. But sometimes employers can misclassify an employee as being one of these overtime exemptions and that’s no good.
This is why I have provided a list of overtime employee exemptions here, so you can check to see if you really do qualify for overtime and are getting cheated by your employer:
- Executive employees: Executive employees are those who manage a business or department. The employee must supervise at least two people and have the authority to hire and fire or recommend changes in employment status. The employee must earn at least twice the state minimum wage for full-time employment.
- Administrative employees: Administrative employees are those who perform office or administrative work with limited supervision and earn at least twice the state minimum wage for full-time employment.
- Professional employees: These include employees in the fields of medicine, dentistry, optometry, law, architecture, engineering, teaching, and accounting, or those is occupations generally recognized as learned or artistic fields. The work should require advanced knowledge of the field, or be original and creative, or intellectual in character. The employee must be allowed to demonstrate independent judgment and earn at least twice the state minimum wage for full-time employment.
- Employees in the computer software field: Programmers, designers, testers and other software professionals who do intellectual or creative work are exempt if the workers hourly rate is no less than $40.38 per hour. This changes every year. This rate is effective January 1, 2014. Thus, the 2014 minimum annual salary exemption is $84,130.53 and minimum monthly salary exemption is $7,010.88.
- Government workers: Employees of the state, county, city or special district are exempt from overtime.
- Outside salespersons: These are salespersons that spend most of their time outside of the employer’s place of business.
- The employer’s family members: Parents, spouses, and children of an employer are exempt from overtime pay.
- Workers in national service programs: AmeriCorps, Peace Corps and other service program workers are exempt from overtime.
- Drivers who are regulated by federal transportation code: This includes drivers who transport goods across state lines and drivers who transport hazardous materials. There are other exceptions.
- Drivers who are regulated by Title 13 of the California Code of Regulations, subchapter 6.5, section 1200 et seq.: This may include drivers of vehicles that weigh more than 26,000 pounds and drivers of trucks regulated by the California Public Utility Commission.
- Some union workers and others who are covered by a valid collective bargaining agreement: The collective bargaining agreement must specify the employee’s wages, hours of work, and working conditions and provide premium wage rates for overtime hours. The employee must earn at least 30 percent more than the state minimum wage.
- Commissioned salesperson: Commissioned salespersons are exempt from overtime if the sales person earns 1.5 times the California minimum wage, receives more than half of his earnings from commissions, and spends 50 percent of his time outside the employer’s place of business.
- Student nurses: Student nurses enrolled in an accredited school are exempt from overtime.
- Some railway workers: Employees who have entered into a collective bargaining agreement under the Railway Labor Act may be exempt from overtime laws.
- Taxicab drivers: Taxi drivers are exempt from California overtime rules.
- Some airline employees: Airline employees are exempt when they work over 40 hours but not more than 60 hours in a week due to an employee-requested change in work schedule.
- Carnival operators: Carnival ride operators are exempt if they are employed full-time by a traveling carnival.
- Commercial fishermen: Crew members employed on commercial fishing boats are exempt.
- Professional actors: Actors and actresses are exempt.
- Motion picture projectionist: Motion picture projectionists are exempt.
- Some radio and TV employees: Announcer, news editors, and chief engineers are exempt if they are employed by a radio or television station in a town with a population of less than 25,000 people.
- Intellectual, Managerial, Or Creative Positions: Any employee who is engaged in work that is primarily intellectual, managerial, or creative, and which requires exercise of discretion and independent judgement, and makes at least 2x the Monthly CA minimum wage for full-time employment.
- Some agricultural workers: Sheepherders and irrigators are exempt from overtime. Other agricultural workers who work less than 30 hours per week do not qualify for overtime on the 7th consecutive work day.
- Irrigators: If More than half of an employee's working time is devoted to irrigation.
- Employees covered by a collective bargaining agreement: If the agreement provides premium wage rates for overtime work and they make at least $1.00/hour more than CA minimum wage.
- Personal attendants: This can include a personal assistant or a care giver, a butler, a valet, etc.
- Babysitters: Anyone under the age of 18 who watches a minor child of the employer in the employer’s home is exempt.
If you are paid an hourly wage, you must be paid for your overtime worked, even if your job duties qualify you for exemption. But employers are always looking for ways to save money so if the salary you earn is at or above a certain level you could be exempted for overtime.
This level or this salary changes each year so here is the 2019 minimum annual salary requirements for California overtime exemption:
- $49,920: This amount applies to workers at a company that employs 25 or fewer people.
- $42,760: This amount is used when an employee works for an employer who has a workforce greater than 25 people.
The exact dollar amount is subject to an annual minimum wage increase. In California, the minimum wage is scheduled to go up every January 1st until 2023. An employee can calculate the minimum salary in any given year by doubling the minimum wage, multiplying the amount by 40 hours (full-time wages), and then multiplying by 52 weeks (yearly salary), and finally dividing by 12 (monthly salary).
If you think you have been misclassified as overtime-exempt, call us now. Like I said I don’t want you to get cheated out of the money that you deserve. I want you to help you get your money back.
Call us today at 619-304-1000
Bill represented the workers in the landmark California Supreme Court case - Brinker vs Superior Court (Maybe the most important wage case for the protection of workers)
Bill represented the workers in the 2012 groundbreaking California Supreme Court case - Brinker vs. Superior Court. Many people say that the Brinker case is the most important California Supreme Court wage and hour case in years (if not ever).
One of the worker protection concepts in the Brinker decision that keeps getting repeated again and again:
“When construing the California Labor Code, California courts are to adopt the construction that best gives effect to the purpose of the Legislature and Industrial Welfare Commission (IWC). The purpose of these laws is the protection of workers. In furtherance of that purpose, California courts are to liberally construe the Labor Code and Wage Orders to favor protection of workers.”
In the Brinker case, the California Supreme Court laid out the duties that California companies have, including providing meal periods and rest periods to workers.