California’s overtime laws can be quite confusing. That’s one of the reasons the Department of Industrial Relations (DIR) has a list of answers to commonly asked questions about overtime.
In general, workers 18 and older and minors 16 and 17 who are not required to attend school (and who aren’t otherwise prohibited from working) – should not be employed more than eight hours in a workday or 40 hours in a workweek – unless they are paid time and a half for all hours in excess of those limits. Workers should be paid double their regular rate of pay if they work more than 12 hours in any day and for all hours in excess of eight on the seventh consecutive day of work in a workweek.
There are numerous exemptions and exceptions that mean the employee doesn’t qualify for overtime or is required to be payed at different rates. A skilled California employee rights lawyer can explain when overtime is due and when exemptions or exceptions apply.
Commonly asked questions
The DIR lists the following questions and answers.
Question. What is the definition of “regular rate of pay.”
Answer. The regular rate of pay is the amount a worker normally earns for the work they do. The regular rate of pay includes hourly pay, salary, piecework earnings, and commissions. The regular rate of pay must be equal to or greater than the minimum wage. The regular rate of pay is generally based on an 8 hour day and a 40-hour workweek. That a worker regularly works four 10-hour shifts or three 12- hour shifts should not affect the regular rate of pay.
If you work 32 to 38 hours each work, then your regular rate of pay is based on a 35-hour workweek. However, the employer does not need to pay you overtime until you work more than 8 hours in one day or 40 hours in the week.
The regular rate of pay for hourly work is your hourly rate.
If you are paid a salary each month, your regular rate of pay is calculated by multiplying your monthly salary by 12 (for 12 months) and then dividing that amount by 52 (for 52 weeks). That amount is then divided by 40 to get your regular hourly rate.
If you are paid for piece work or by commission, then either of the following methods can be used to determine your regular hourly rate:
- “The piece or commission rate is used as the regular rate and you are paid one and one-half this rate for production during the first four overtime hours in a workday, and double time for all hours worked beyond 12 in a workday; or”
- “Divide your total earnings for the workweek, including earnings during overtime hours, by the total hours worked during the workweek, including the overtime hours. For each overtime, hour worked you are entitled to an additional one-half the regular rate for hours requiring time and one-half, and to the full rate for hours requiring double time.”
When employers make your work more than your normal hours, you deserve to be paid overtime pay. At the California Law Offices of Stephen A. Danz and Associates, our overtime pay lawyers understand when you must be paid overtime and exactly how much overtime you are due based on your working relationship and the number of hours you worked. To hold employers liable for your full overtime pay, phone us at online contact form to schedule an appointment. Se habla espanol.or fill out our
Questions and Answers about California Overtime – Part Two
This is a continuation of our blog series on overtime pay.
Question. If the employee works overtime that isn’t authorized, must the employer pay for the overtime.
Answer. In California, the answer is yes. In California, the employer must pay overtime even if it is not authorized. The employer “can discipline an employee if he or she violates the employer’s policy of working overtime without the required authorization.” But the state wage and hour laws require that the employee be paid “for any hours he or she is ‘suffered or permitted to work, whether or not required to do so.’” Suffer or permit means the employer know or should have known about the work.
Question. Is a bonus included in the regular rate of pay for purposes of calculating overtime?
Answer. Yes, provided the bonus is not discretionary. “A nondiscretionary bonus is 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. Incentive bonuses include flat sum bonuses.”
If a bonus is discretionary, such a holiday gift or pay for a special occasion such as a being rewarded for good work, then the bonus is not figured into the overtime pay rate – provided the bonus is not “measured by or dependent upon hours worked, production or efficiency.”
Question. Are any amounts excluded from the regular rate of pay?
Answer. Yes. Some of the exclusions from the regular rate of pay include:
- Amounts paid as gifts
- Reimbursement expenses
- Payments made for occasional periods when no work is performed due to vacation, holiday, illness
- Discretionary bonuses
- Other exclusions may also apply
Question. Can salaried employees receive overtime?
Answer. It depends. 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 the California Labor Code or one of the Industrial Welfare Commission Wage Orders regulating wages, hours and working conditions.
Question. Can an employer require an employee to work overtime?
Answer. “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 who is fully apprised of the entitlement to rest may independently chooses not to take a day of rest.”
Don’t get short-changed. Employers are bound by California law to pay you overtime pay when your hours meet the state definitions. The employers must follow California law and can’t make arbitrary changes to your working relationship to deny or reduce your overtime pay award. For help getting all the compensation you earned, call the California Law Offices of Stephen A. Danz and Associates today. We can be reached at online contact form to schedule an appointment. Se habla espanol.or you can use our
Questions and Answers about California Overtime – Part Three
Question. When must I be paid for the overtime hours I work?
Answer. Labor Code Section 204 requires that overtime wages be paid not later than the “payday for the next regular payroll period after which the overtime wages were earned.” “Only the payment of overtime wages may be delayed to the payday of the next following payroll period as the straight time wages must still be paid within the time set forth in the applicable Labor Code section 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.”
Question. Can an employee waive his or her right to overtime compensation?
No. Employees must be paid for all their overtime earnings even if there is an agreement for a reduced wage. Such an agreement will not take priority over the legal requirement to pay overtime – according to Labor Code Section 1194.
Question. What can I do if my employer doesn’t pay me my overtime wages?
Employees can file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner’s Office). Employees can also file a lawsuit against the employer in court – 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.”
What can I do if my employer retaliates against me because I told him/her I was going to file a wage claim for unpaid overtime?
Employees have the right to file a discrimination/retaliation complaint with the Labor Commissioner’s office or they can file a lawsuit with the help of an experienced employee rights lawyer – if an employer retaliates or discriminates against the employee in any way – for example, by firing you because you filed or threatened to file a wage claim.
If you have any questions about your overtime pay, the California Law Offices of Stephen A. Danz and Associates is here to help. We hold employers accountable when they try to cheat you out of your hard-earned income. For help with any overtime pay claim or questions, call us at online contact form to schedule an appointment. Se habla espanol.or fill out our