Unpaid Overtime Attorney

After How Many Hours of Work Do Overtime Rules Kick In?

Overtime is determined based on hours of labor actually performed. If an employee gets paid for a holiday but does not work that day, then the employee gets paid their normal wages, but the time is not counted toward overtime. In terms of determining overtime, holiday pay or sick pay may not qualify as hours worked. According to time-clock rules for hourly employees, nonexempt workers are entitled to mandatory overtime pay if they work over:

• 8 hours in a day
• 40 hours in a week
• 6 days in a row during the week

It should be noted that workers may not waive overtime pay.

How many hours is overtime?

In California, laws regarding overtime state that non-exempt employees must earn 1.5 times their normal rate of pay. This rule applies when an employee works:

• Over eight hours per day
• Over forty hours per week
• Over six days in a row during a week

In addition, employers are required by law to pay nonexempt workers double-time if they work over:

• Twelve hours in a day
• Eight hours on the seventh day in a row

Any worker who is denied overtime pay can complain to the Labor Commissioner. A worker can also choose to submit a wage and hour lawsuit against their company regarding unpaid wages as well as lawyer’s fees.

Timeline for Overtime Pay

Overtime needs to be paid by the payday for the next usual payroll period after the overtime amount was earned. Concerning employees who are paid on a weekly, biweekly, or semimonthly basis, overtime must be paid no more than 7 days after the end of the payroll period.

Waiving the Right to Overtime Compensation

Under California law, an employee must be paid overtime compensation regardless of any agreement to perform work for less. Therefore, any agreement to that effect cannot prevent a worker from receiving the overtime pay they are entitled to.

When an Employer Does Not Pay Overtime Wages

If an employer does not pay overtime wages, an employee can file a wage claim with the Division of Labor Standards Enforcement, or the Labor Commissioner’s Office. Also, the employee could choose to file a clam against the employer to receive compensation for lost wages. If the employee no longer works for the employer, he or she can file a claim for the waiting time penalty, according to Labor Code Section 203.

Can an All Workers Earn Higher Wages for Working Extra Hours?

The answer to this question is no. There are a few kinds of workers who are not permitted overtime pay. These include:

• Exempt employees
• Outside salespersons
• Unionized employees
• Specific jobs using their own overtime rules
• Independent contractors
• Employees using an alternative schedule for workweeks

The only individuals who can get higher pay for working more hours are nonexempt workers who are eighteen years of age or older. (Also included are those sixteen or seventeen years of age who are permitted to work rather than attending school.)

The Procedure After Filing a Wage Claim

Once a claim is finished, it should then be submitted to a local office of the Division of Labor Standards Enforcement (DLSE). After that, it will be assigned to a Deputy Labor Commissioner. This official will decide how to go forward based on the circumstances surrounding the claim and the information provided. Thereafter, there are a few courses that may be taken. There might be referral to a conference, recommendation for a hearing, or the flat-out dismissal of the claim.

If the Deputy Labor Commissioner makes the decision to have a conference, then the parties will receive notification by mail where and when to meet. The conference is meant to assess the legitimacy of the claim and see if it can be solved at that point without a hearing. If the claim cannot be resolved at that point, then the matter moves onto a hearing.

The hearing involves both parties as well as witnesses testifying under oath. After the conclusion of the hearing, the Labor Commissioner will serve an Order, Decision, or Award (ODA).

Either party can appeal the ODA to a civil court. At the trial, each party can present evidence and bring forward witnesses. The testimony and evidence from the Labor Commissioner’s hearing will not affect the court’s decision. Sometimes, if an employer is appealing the ODA, the DLSE may choose to represent an employee who is not able to afford a lawyer for the trial.

Are employers obligated to pay unauthorized overtime?

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.

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.

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.

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.

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.

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.

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.

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)