Introduction
According to California’s basic overtime laws, a worker who is not exempt and who is at least eighteen years old, or a teenager who is sixteen or seventeen years old and is not also forbidden by law from working, cannot work more than 8 hours in a day or over forty hours in a workweek unless they are paid one and a half times their normal rate of pay for each hour over 8 in a workday and more than forty in a week of work (or double as mentioned below). Eight hours of work is considered a full day’s job, and if an employee works longer than 8 hours on a weekday or more than six days in a workweek, they should be paid at least:
- One and one-half times the worker’s usual rate of pay for all hours worked over eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh straight day of work in a workweek; and
- Double the worker’s normal rate of pay for all hours worked over 12 hours in any workday and for all hours worked over eight on the seventh consecutive day of work in a workweek.
There are, however, a variety of exemptions from the overtime law. An “exemption” means that the overtime law does not apply to a certain group of employees. There are also a variety of exceptions to the general overtime law stated above. An “exception” means that overtime is paid to a certain group of employees on a basis that differs from what is stated above. In other words, an exception is a special rule. (For special rules about overtime for agricultural workers, please see Overtime for Agricultural Workers.)
What is the ‘regular pay rate,’ and how do you figure it out?
Your usual rate of pay—the amount you normally receive for the work that you do—is the basis for overtime calculations. This is calculated by dividing the total pay for employment (except for the statutory exclusions) in any workweek by the total number of hours actually worked to determine the regular rate. In order words, To figure out an employee’s regular rate, use this formula: amount of pay for a workweek divided by number of hours worked (not including overtime). Hourly wages, salaries, commissions, piecework income, and other kinds of payment are all included in the normal pay rate. Usual pay rates cannot ever be lower than the correct minimum wage.
The normal pay rate for calculating overtime can be figured out using any of the methods that follow when you get paid by a piece or commission. For example, take the total amount of money you earned during the week of work (including overtime) and divide it by the total number of hours you worked. You have a right to an extra half of the normal rate for time and a half hours worked, as well as the entire rate for double time hours, on every overtime hour that you work. If your pay is hourly, this number is your normal pay rate. It includes but is not limited to shift changes and the hourly equivalent for all non-hourly payments you have received.
Does the employer have to pay overtime that is not authorized?
Yes, employers are required by California law to pay overtime, even if it is not authorized. The pay rate for overtime is 1.5 times the usual rate of pay for every hour worked over 8 in the day up to and including 12 hours, as well as for the first 8 hours worked on the 7th continuous day of work in a week. For every hour over twelve in the day and for every hour over 8 on the 7th continuous day of work in a week, the usual pay rate is doubled for overtime.
California’s wage and hour laws require that the worker be paid for any hours he or she “suffered or permitted to work, whether or not required to do so.” California case law holds that “suffer or permit” means work the employer knew or should have known about. Thus, a worker cannot purposefully stop the employer from knowing about the unauthorized overtime worked, and come back later to claim payment but at the same time, an employer has the responsibility to keep exact time records and must pay for work that the employer allows to be done and from which the employer benefits.
Does the standard pay rate include a bonus when determining overtime?
Sure, if the bonus is non-discretionary. The amount of overtime pay due to an employee is based on the employee’s regular rate of pay and the number of hours worked in a workweek. If the bonus is earned over multiple weeks, the bonus amount for each workweek will need to be figured and included in the regular rate of pay for all overtime weeks covered by the bonus.
When a bonus is given as payment for hours worked, skill, production, or as a reason to stay with the same company, it is factored in figuring out the normal rate of pay for calculating overtime. Bonuses with a fixed amount are considered rewards. Instead of dividing the bonus by the entire number of hours worked during the bonus-earning period, the bonus should be divided by the highest number of normal hours worked during that time to calculate overtime for a flat amount bonus. Based on the flat amount of bonus income, this calculation will give the normal pay rate.
When calculating the normal rate of pay, optional bonuses and amounts given as gifts on holidays or other special times—like a prize for excellent service—that are not based on production, hours worked, or skill aren’t included in the calculation and aren’t tied to rates of overtime.
Are there any payments that don’t count toward the regular pay rate?
Yes, some types of payments are not included in the basic pay rate. As a non-exempt employee in California, you are entitled to overtime pay at 1.5 times your regular rate of pay. The final rule clarifies that perks and benefits offered to employees by do not count in calculating an employee’s regular rate of pay. Profit-sharing plan payments and benefit plan contributions may also be excluded from the regular rate calculation. Expense refunds, and payments given for times when no work happens due to vacation, holidays, sickness, or the company’s inability to provide enough work are just a few of the more common exclusions. Other examples include premiums paid for Sunday, Saturday, or holiday jobs (where the rate for such premiums is at least 1.5 times the rate that was actually set for similar work finished during non-overtime times on different days), as well as optional bonuses.
Are salaried workers eligible for overtime pay?
That 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. Starting July 1, 2024, employers will be required pay overtime to salaried workers who make less than $43,888 a year in certain executive, administrative and professional roles, the Labor Department said. That cap will then rise to $58,656 by the start of 2025.
Paid overtime is a requirement for salaried workers unless they meet the requirements of state and federal laws for exempt status, or unless the Labor Code of California or a Wage order of the Industrial Welfare Commission specifically exempts them from overtime laws. These wage orders control working conditions, hours worked, and wages.
Is it legal for an employer to demand overtime from a worker?
Yes, unless there is a collective bargaining agreement to the contrary, employers can require their employees to work overtime. Generally, mandatory overtime is legal as long as the employer remains compliant with FLSA guidelines, which include 1.5 times normal wage for any hours worked. Furthermore, in most cases, if a worker refuses to do the required overtime, the employer has the right to take action against them, which may include firing them. Employers, however, are responsible for fines if they force or pressure a worker to skip a rest day; they cannot fire a worker for refusing to report for duty on the seventh day of the workweek. When fully informed of their right to rest, workers are free to decide whether or not they need a day off.
When should I receive payment for the overtime I worked?
Payment of overtime must happen by the next normal payroll period’s payday following the overtime period in which it was earned. As long as straight-time payments are given out within the time frame specified in the relevant part of the Labor Code during the time frame when they were earned, only the overtime wages may be delayed to the next payroll period’s payday. If workers are paid every week, every two weeks, or semimonthly, they must release their wages no later than 7 calendar days after the payroll period ends.
What can I do if my employer doesn’t pay me my overtime wages?
If you were not paid for the overtime hours you worked, you could have grounds to file an unpaid overtime claim against your employer. If your employer has not paid you overtime under California wage and hour laws, you may be able to recover unpaid OT by filing a wage and hour lawsuit. Also, if you’re eligible for overtime and your employer refuses to pay overtime or pays your regular work for overtime hours, you can file a claim for unpaid overtime.
