Brad Nakase, Attorney
Overtime pay is 1.5 times your regular pay rate. You are entitled to overtime pay when any of these conditions occur:
For example, if your regular hourly pay is $20, your overtime pay is $30 per hour.
If you work 8 hours per day, anytime after the 8th hour the same day is overtime pay.
But wait, there is more! When you work six days straight in a workweek, the seventh day of work starts at overtime pay.
Yes. When an employee work unauthorized overtime, the employer is obligated to pay for the overtime work. The pay rate for the overtime pay is 1.5 times the employees’ regular rate of pay for all hours worked.
Because “hours worked” includes time when the employee is “permitted to work, whether or not required to do so,” an employee who works overtime even though not requested to do so must be paid overtime compensation if the employer knew or had reason to believe that the employee was working and did not prevent the overtime work.
Q. Are bonuses included in overtime calculation?
Yes, if the bonus is not discretionary. A nondiscretionary bonus is included in determining the rate of pay for calculating overtime. A nondiscretionary bonus is when the bonus is for hours worked, performance, or an incentive to stay with the employer.
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.  To properly compute overtime on a flat sum bonus, the bonus must be divided by the maximum legal regular hours worked in the bonus-earning period, not by the total hours worked in the bonus-earning period. This calculation will produce the regular rate of pay on the flat sum bonus earnings.
Overtime on a flat sum bonus must then be paid at 1.5 times or 2 times this regular rate calculation for any overtime hour worked in the bonus-earning period.
Overtime on production bonuses, bonuses designed as an incentive for increased production for each hour worked are computed differently from flat sum bonuses.  To compute overtime on a production bonus, the production bonus is divided by the total hours worked in the bonus earning period. This calculation will produce the regular rate of pay on the production bonus. Overtime on the production bonus is then paid at .5 times or 1 times the regular rate for all overtime hours worked in the bonus-earning period.
Overtime on either type of bonus may be due on either a daily or weekly basis and must be paid in the pay period following the end of the bonus-earning period.
Discretionary bonuses or sums paid as gifts at a holiday or other special occasion, such as a reward for good service, which are not measured by or dependent upon hours worked, production or efficiency, are not subject to be paid at overtime rates and thus are not included for purposes of determining the regular rate of pay.
Q. Are there any bonuses excluded from the regular rate of pay?
Yes. Bonuses that are prizes and award excluded from the regular rate of pay. Discretionary bonuses, such as holiday bonuses, and payments in the nature of gifts do not have to be included when computing the regular rate. A bonus is discretionary if the payment is made at the sole discretion of the employer and the employee does not expect those payments to be made regularly.
Examples of some of the more common exclusions are sums paid as gifts for special occasions, expense reimbursements, payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, premium pay for Saturday, Sunday, or holiday work, and discretionary bonuses.
Q. Are salaried employees entitled to overtime?
It depends. A salaried employee must be paid overtime unless the employee is an exempt employee. An exempt employee is not entitled to overtime; rest or meal periods are up to the employee to take, and the employer does not track time.
Exempt employees are people whose duties by nature are executives, administrative, professionals. Employers frequently fail to pay overtime to salaried employees who are entitled to overtime pay. Many employers falsely assume that salaried employees are exempt from overtime pay.
Q. Can my boss require me to work overtime?
Yes. Your employer may force you to work scheduled overtime. In most cases, if you refuse to work scheduled overtime, your employer may discipline you which may include termination. However, your boss cannot fire you if you refuse to work seven days in a workweek; if you are fired for refusing to work seven days in a work week, your boss may be subject to civil penalty.
Q. When must I be paid for overtime work?
Your employer must pay your overtime hours on the next regular payday. With some exceptions, generally all wages earned by an employee are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays.
Your work performed between the 1st and 15th days, inclusive, of any calendar month shall be paid for between the 16th and the 26th day of the same month.
Your work performed between the 16th and the last day, shall be paid for between the 1st and 10th day of the next month.
Q. Can I waive my right to overtime pay?
No. All employers in California is required by law to pay employees overtime; even if you agreed to work overtime for free. Even if you agreed or waive overtime pay, you can still go after your boss for unpaid overtime.
Any agreement to work for a lesser wage is not valid. Any employee receiving less than the minimum wage or overtime pay is entitled to recover the unpaid money of the full amount, including interest thereon, reasonable attorney’s fees, and costs of suit.
Q. What can I do if my employer doesn’t pay me my overtime wages?
You may hire a lawyer and recover the unpaid overtime. “any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” (Labor Code Section 1194)
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 See 8 Cal. Code Reg. §§ 11010–11020, 11060–11090,
11130, 2(G) (Cal. Wage Order Nos. 1-2001–2-2001, 6-2001–9-2001, 13-2001); 11030, 11100–11120, 11150, 2(H) (Cal. Wage Order Nos. 3-2001, 10-2001–12-2001, 15-2001); 11160, 2(J) (Cal. Wage Order No. 16-2001); 11040–11050, 2(K) (Cal. Wage Order Nos. 4-2001–5-2001).
 According to the DLSE Manual, flat sums must be divided by straight time hours only and multiplied by 1.5 or 2.0 to determine appropriate overtime and double time premiums. [2002 Update of 1998 DLSE Enforcement Policies and Interpretation Manual (Revised) § 188.8.131.52.] By contrast, the DLSE Manual explains that bonuses that can increase based on an employee’s additional effort or productivity are
not entitled to special protection. They may be divided by all hours worked and multiplied by .5 or 1.0 to determine appropriate overtime and double time premiums. [2002 Update of 1998 DLSE Enforcement Policies and Interpretation Manual (Revised) § 49.2.4.]
 The California Supreme Court addressed flat sum payments in Alvarado v. Dart Container Corp. [(2018) 4 Cal. 5th 542, 229 Cal. Rptr. 3d 347]. The employer, Dart Container, paid a flat amount of $15.00 per day of weekend work to non-exempt employees. The plaintiff argued that the DLSE’s flat sum formula applied to these attendance bonuses, because they were fixed amounts that could not be increased, no matter how many hours an employee worked. Dart Container contended that it lawfully calculated overtime using the FLSA formula. The California Supreme Court unanimously held that California law requires employers to use the DLSE formula when calculating overtime on flat-sum bonuses.
 Generally, the same formula is applied under California law where the bonus is based on a percentage of production or some formula other than a flat amount. The regular rate of pay for a non-excludable bonus, prize, or award is computed by dividing the amount of the payment by the total number of hours worked. The employee must then receive overtime compensation on the payment, which is equal to (1) one-half times the regular rate for each overtime hour worked during which the employee is ordinarily entitled to 1½ times the regular rate of pay, plus (2) the full amount of the regular rate for each overtime hour worked during which the employee is entitled to double the regular rate of pay. [The 2002 Update Of The DLSE Enforcement Policies and Interpretations Manual (Revised) § 49.2.4.]
 CA Labor Code § 204
(a) All wages, other than those mentioned in Section 201, 201.3, 202, 204.1, or 204.2, earned by any person in any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays. Labor performed between the 1st and 15th days, inclusive, of any calendar month shall be paid for between the 16th and the 26th day of the month during which the labor was performed, and labor performed between the 16th and the last day, inclusive, of any calendar month, shall be paid for between the 1st and 10th day of the following month. However, salaries of executive, administrative, and professional employees of employers covered by the Fair Labor Standards Act, as set forth pursuant to Section 13(a)(1) of the Fair Labor Standards Act, as amended through March 1, 1969, in Part 541 of Title 29 of the Code of Federal Regulations, as that part now reads or may be amended to read at any time hereafter, may be paid once a month on or before the 26th day of the month during which the labor was performed if the entire month’s salaries, including the unearned portion between the date of payment and the last day of the month, are paid at that time.
(b) (1) Notwithstanding any other provision of this section, all wages earned for labor in excess of the normal work period shall be paid no later than the payday for the next regular payroll period.
(2) An employer is in compliance with the requirements of subdivision (a) of Section 226 relating to total hours worked by the employee, if hours worked in excess of the normal work period during the current pay period are itemized as corrections on the paystub for the next regular pay period. Any corrections set out in a subsequently issued paystub shall state the inclusive dates of the pay period for which the employer is correcting its initial report of hours worked.
(c) However, when employees are covered by a collective bargaining agreement that provides different pay arrangements, those arrangements shall apply to the covered employees.
(d) The requirements of this section shall be deemed satisfied by the payment of wages for weekly, biweekly, or semimonthly payroll if the wages are paid not more than seven calendar days following the close of the payroll period.
Labor Code Section 1194