Overtime Pay Laws in California: FAQ
Are Bonuses Included in the Normal Payment Rate to Determine Overtime?
Yes, they are. The bonus would have to be a non-discretionary one. If so, it is included in any determination of a normal payment rate to figuring out how much overtime is due.
Bonuses provided as incentive also include flat sum bonuses. In order to figure out how much overtime is due when a flat sum bonus is involved, another calculation must be made. You must divide the bonus by the total number of normal hours permissible by law to be worked in a bonus-earning period. This total is not the total number of hours worked within a bonus-earning period. The end result of this math is the normal payment rate on flat sum bonuses. The rate has to be 1.5x or 2x the normal rate to ascertain the overtime rate.
There are different rules regarding production bonuses. These are bonuses provided to incentivize an employee to boost production while working. To figure out the overtime for a production bonus, the bonus needs to be divided by all the hours worked within the period when a bonus was earned. This nets you the normal payment rate for this type of bonus. The amount of overtime you will receive is 0.5x or 1x the normal rate within the eligible period. This overtime will have to be paid out either daily or weekly. It also has to paid within the pay period coming after the period of when the bonus was earned.
There is a third type of bonus, but it is not eligible for overtime payouts. This is the discretionary bonus. This includes when something is a payment in the form other than legal tender. Gifts, tips, and other things fall into this category. These are not tied to how many hours you work or how well you work. This type of bonus will not be eligible to receive any overtime.
Is an Employer Allowed to Make an Employee Work Overtime?
Yes, they are allowed. Employers are allowed to create work schedules where they ask an employee to work overtime. They have the authority to terminate the employment of any workers working for them if they refuse to work overtime.
There is a situation where an employer is barred from disciplining their employees. If someone working for them refuses to work on the seventh day of a workweek, they have a right to refuse. Furthermore, they may get penalized for not allowing that employee to have a day off to rest. However, that employee is able to personally decide to not rest on the seventh day, if they choose to do so.
Do You Get Paid Overtime for a Sick Day If It Leads to Being Paid for 48 Hours?
No, you do not. You may work 40 hours within a workweek, but then take a sick day within that week. If so, you get paid your regular rate. This would come out to getting pay for 48 hours at your normal rate of payment. This is because overtime is determined based on how many hours you actually worked. Whether you take a sick day, or are not working because of a federal holiday, you end up with the same result. You may have more than 40 hours at the end of your workweek getting paid for. However, if you only worked for 40 hours, you get no additional overtime pay.
Is an Employee Allowed to Forfeit Their Right to Overtime?
No, they are not. In California, overtime is required to be paid, regardless of any agreements an employee may have made with an employer. Even if there is such an agreement, an employee can recoup the overtime they were supposed to get. They can file a wage claim or bring a lawsuit up against their employer.
Is There Anything You Can Do If an Employer Withholds Overtime Pay?
Yes, you can. You have the option of filing a wage claim with the office of the Labor Commissioner. You can also file a lawsuit against your employer, so you can recoup any wages owed to you. In the case that you no longer work for an employer, you can also file a claim. However, it will have to be within the statute of limitations, which is three years.
What to Do When You Prevail in a Hearing But Your Employer Refuses to Pay or Appeals?
When the result of a hearing is in your favor, without an appeal, you are usually not going to deal with any other issues. However, sometimes you will have a resistant employer that refuses to pay what is owed to you. In this sort of situation, the Division of Labor Standards Enforcement gets the court to place the Order, Decision, or Award as a judgment against that employer. A judgment of this kind holds the same power as anything a court would decide. You have the option of getting the judgment on your own or asking the Division of Labor Standards Enforcement to get it for you.
What Do You Do When an Employer Retaliates Because You Said You Would File a Wage Claim?
In the event that an employer is retaliating or discriminating against you, there is an official action you can take. They are not allowed behave in this way at all. They may even attempt to terminate you because you filed a wage claim, or said you would. What you can do is file an official complaint of discrimination or retaliation with the office of the Labor Commissioner. You also have the option of suing your employer.