How to Calculate Daily and Weekly Overtime in California

An employer who doesn’t correctly pay employee overtime wages can be liable for millions of dollars in a lawsuit. California, like other states, has a set of specific overtime rules. Here, we will go over how to calculate daily and weekly overtime in California.

By: Brad Nakase, Attorney

Email  |  Call 888-600-8654

California Overtime Law:

An employer must pay an employee 1.5X of the regular hourly pay when:

    • The employee works over eight hours in day, and
    • The employee works over 40 hours in one week, and
    • The Employee works six or more days per week.

A normal day’s work is seen to be eight hours of labor, so working beyond that during one day, or working over six days in any workweek, means that the employee should receive overtime pay.

Specifically, for hours worked over eight hours and up to 12 hours on any day, overtime should be paid. Also, working on a seventh straight day, for the first eight hours, should trigger overtime. It is important to note that for both of these scenarios, employees are paid 1.5 times their normal wages.

When employees see fit to work over twelve hours in one day or work more than eight hours on a seventh straight day, they will also be paid overtime; but the overtime will be double their normal pay, so their pay rate X 2.

While this may seem fairly simple, there are many exemptions to these rules. Some of these overtime regulations do not apply to a certain employee, and sometimes overtime is received on a different basis. We will go over these special rules and exceptions to the main rules here because it is important that both employers and employees are familiar with them.

The Regular Rate of Pay

Also known as the “regular pay rate,” this is what any paid overtime is based on. The pay rate cannot go below California’s minimum wage. A normal pay rate includes:

  • Commissions and Piecework
  • Hourly Pay
  • Salaries

Usually, when you calculate the normal pay rate, you base it on working 8-hour days that make up a 40-hour week. Of course, some people work a different number of days in a week. According to the Industrial Welfare Commission Wage Orders, it all comes down to the number of eight hours per day and especially 40 hours per week. If a worker has an alternate schedule and works less than 40 hours per week (say, 35), they will not be paid overtime if they work 36 or 37 hours. They would have to work over 40, just like anyone else.

Regular Rate of Pay Formula

    • Your hourly rate = your regular rate, including any shift differentials and whatever rate you are paid per hour.

    • If you are salaried, your monthly salary can be multiplied by 12 to get your annual salary, divided by 52 to find the weekly sum, or even divided by the number of hours to find your hourly pay.

    • If you work on commission, your commission rate is recognized as your normal pay level, and you get 1.5 X your rate during your first four overtime hours logged and 2 X your rate for hours beyond 12 in one day. You can also divide total weekly earnings by total hours.

    • Some workers are paid different sums and rates. If this is true, you need to find the average of what you are paid, so divide total weekly earnings by total hours.

Unauthorized Overtime Work Must Be Paid 1.5X

If you are wondering who is able to be compensated with overtime rates and why and how it is authorized, you are not alone. In California, workers must be paid for overtime work even if the overtime work is not authorized. Unauthorized overtime means that even though the employer did not tell workers to work extra hours, they did anyway. An important distinction here is that it is necessary that the employer was aware that the worker was putting in overtime hours. Legally, this is known as the employee is “suffered or permitted to work, whether or not required.”

If employees work overtime without first obtaining permission, their employer is able to discipline them. Workers, then, cannot hide their overtime hours from their bosses on purpose. And, though it may be a popular expression, bosses are never able to ask their workers to work for a few hours “off the clock.”

Bonuses and Overtime Pay

It is important to realize the hourly rate the employee is paid and/or shift differentials figure into their regular pay. Also, some hourly employees get bonuses. Why would they receive this? Bonuses like this can provide incentives to keep working for an employer, or they are rewarded for time spent, skill, or production. If a bonus is paid, it is added to the individual’s hourly pay and divided by the number of hours worked that are not regarded as overtime. This equation will provide the hourly pay ratio.

Some payments to employees are not factored into the regular pay level.

These Payments May Include:

  • holiday/weekend wages if the payment is at least one and one-half times the normal level for comparable work done during a normal workweek.
  • pay during periods when there is no work available, or during holidays, vacations, sick time, etc.).
  • gifts
  • bonuses
  • reimbursements for expenses
  • other exclusions

These payments can be excluded from the normal pay rate.

Filing a Claim for Overtime Wage Loss

After the claim is finished and filed with the local DSLV or Division of Labor Standards Enforcement, it is sent to a Labor Commissioner. They will figure out how to proceed. The choices are a conference, hearing, or dismissal. For more information about each of these important legal processes, please contact a lawyer.

If a conference is deemed necessary, all involved parties receive notice by mail regarding the date, time, and place of the conference. The goal of the conference is a establish if the claim is valid and legitimate and then to see what the next steps should be. If the claim cannot be resolved during the conference or is simply too complex, a hearing is usually the next step.

During a hearing regarding the wage claim, all the parties and witnesses involved will testify under oath, and the entire proceeding will also be recorded. After the hearing, expect an ODA to be served to both parties by the Labor Commissioner.

If you would like to appeal the decision, either party is able to contact a civil court of competent jurisdiction. The court will prepare the trial, and each party will be able to present witnesses, evidence, and other relevant information. The basis for the court’s decision will not rely on the testimony and evidence that was presented at the Labor Commissioner’s hearing. If an appeal is made by an employer, DLSE might represent an employee who is unable to afford counsel.

If an employer sees fit to retaliate against an employer, they are encouraged to file a complaint about this action with the office of the Labor Commissioner. Employees also are able to take the matter to court by filing a lawsuit against their employer.

Commonly Asked Overtime Questions about California Overtime

  • What if my employer suddenly commences retaliatory actions because I informed him/her that I was filing a wage claim for my unpaid overtime?

If an employer sees fit to retaliate against an employer, they are encouraged to file a complaint about this action with the office of the Labor Commissioner. Employees also are able to take the matter to court by filing a lawsuit against their employer.

  • What happens if I win a hearing for a work-related issue, but my employer does not pay the wages owed and also does not appeal the decision? How can I move things along and obtain the money that is owed to me? Also: what is meant by “Order, Decision, or Award?”

When the employee receives a favorable decision, and no appeal is placed by the employer, the employer must pay out the ODA. If they do not, you can notify the DLSE, the Division of Labor Standards Enforcement, and they will register a judgment against the employer. The court will enter the ODA. This judgment will have the same effect as any other financial judgment entered by the court. You could also try to collect the judgment yourself, but it is usually wise to have the DLSE on your side. It also may be useful to speak with a lawyer at this point to make sure that your employer complies with the decision.

Great question! Order, Decision, Award, or ODA simply refers to the outcome of the hearing and the nature of what the prevailing employee is able to acquire.

  • After I file a claim for overtime pay that I believe is owed to me by my employer, what are the next steps?

After your claim is filled out and filed with a local California office of the DSLE, a few different steps will occur. Your claim will be assigned to a Deputy Labor Commissioner, and this person will decide the best manner will be to proceed. They will base this decision on the facts of your case, the circumstances surrounding your claim, and all of the other information that is presented.

Your representative will have several options, including dismissal of the claim, referral to a conference, or referral to a hearing. If a conference is deemed necessary, all involved parties receive notice by mail regarding the date, time, and place of the conference. The goal of the conference is a establish if the claim is valid and legitimate and then to see what the next steps should be. If the claim cannot be resolved during the conference or is simply too complex, a hearing is usually the next step.

During a hearing regarding the wage claim, all of the parties and witnesses involved will testify under oath, and the entire proceeding will also be recorded. After the hearing, expect an ODA to be served to both parties by the Labor Commissioner.

If you would like to appeal the decision, either party is able to contact a civil court of competent jurisdiction. The court will prepare the trial, and each party will be able to present witnesses, evidence, and other relevant information. The basis for the court’s decision will not rely on the testimony and evidence that was presented at the Labor Commissioner’s hearing. If an appeal is made by an employer, DLSE might represent an employee who is unable to afford counsel.

  • My boss just said they would not provide the OT pay that I know I am owed! What do I do?

If your employer does not pay them overtime wages that are owed to you, there are a few things you can do. You can file a lawsuit in court against your employer in order to recover lost wages, or you can file a wage claim with the Labor Commissioner’s Office in California.

If you do not work for this employer anymore, you can create a claim pursuant to Labor Code Section 203 for the waiting time penalty.

You can also contact a business lawyer for more help with this issue, as well.

  • I worked Monday, Tuesday, Wednesday, and Thursday last week, as well as Sunday, for eight hours each day. I was out sick on Friday. I was paid 48 hours at only my regular hourly rate. Shouldn’t I get eight hours of overtime pay?

No. Unfortunately, you are not due for any overtime payment. Overtime wages are based on hours worked, and you still only worked 40 hours. It is a similar situation to when you are paid for a holiday but did not work any hours that day. Holiday pay does not count toward your hours worked or your overtime rate because clearly, no work was conducted.

  • Can I relinquish my right to OT pay as an employee?

No, you may not do this under California law. As we said, employees are unable to waive overtime pay. CA law necessitates that an employee is paid all overtime compensation, even in spite of any agreement to work for a lesser wage. This means that a verbal or written agreement or a waiver will not prevent employees from getting back any difference between regular pay and overtime pay he/she is entitled to receive.

All You Need to Know

We hope this has been both productive and helpful and that we have cleared up any confusion surrounding overtime (OT) pay in California. If you have questions or would like to discuss these issues with a licensed business lawyer, please contact Nakase Law Firm. Whether you are dealing with an employee making a false wage claim or an employer that will not pay you the overtime earnings you are rightfully owed, our attorneys can help you quickly recover your losses, saving you time and money in the process. Contact our skilled California lawyers at Nakase Law Firm today for a free consultation.

We want to hear your story.

6 + 2 = ?

Retaliation for Reporting Harassment at Work

An employer who punishes an employee who reported sexual harassment in the workplace violates state and federal law and is liable for retaliation. Examples of retaliation include demotion, fewer working hours, segregation, or termination.

Obscene and Sexual Gestures a Work

We're not talking about the ubiquitous middle finger that says fuck you. Obscene and sexual gestures at work may include two fingers in a V shape, with a tongue in between. 

Quid Pro Quo Sexual Harassment

One of the most common types of sexual harassment is Quid pro quo sexual harassment, and it is one of the easiest to hide. All types of workplace sexual harassment are illegal.

Reporting Time Pay

Wages are what we mean when we use the term "reporting time pay." If employers do not pay all of this at the moment of an employee being terminated, there may be waiting time penalties involved.

Can I Sue My Employer For Not Paying Me Correctly?

Employees work hard and deserve to be paid correctly, and on time. It sucks when an employee works hard, and long hours only to be paid incorrectly while the boss is driving a Lambo or Benz.

8 FAQ Answer: Employees Must Know About Wrongful Termination

If an employee believes that he or she has been unlawfully fired from their job, he or she may file a wrongful termination claim in court. These claims are based on the alleged breaking of federal or state anti-discrimination law, employment contracts, or labor laws.

What Are the Signs of a Toxic Coworker?

The 8 identifying traits of of a toxic coworker are: 1. The toxic coworker is often sarcastic. 2. The toxic coworker often insults and mock others. 3. The toxic coworker is selfish...

Two-Week Notice Letter: 9 Tips and 2 Templates

If an employee decides to resign from his or her job, it is normal and expected to provide their employer with two weeks’ notice. Regardless of why a person is leaving their job, it is considered professional to give their employer enough time to make plans to cover the absence.

Do guys get paid paternity leave?

A father is eligible for paternity leave if three conditions are met: 1) welcome a new child within the first twelve months; 2) Paid into the State Disability Insurance; 3) Has not taken more than eight weeks of paternity leave in the past twelve months.

6 Things to Know About At-Will Employment

“At-will” means that an employer can fire an employee for any reason at any time without getting into legal trouble. The exception is that the reason cannot be illegal in nature.

7 Things Women Should Know About Sexual Harassment

Sexual harassment is an umbrella term covering many forms of unwelcome verbal and physical sexual attention. Sexual assault, meanwhile, is physical sexual contact or behavior that happens without the consent of the victim.

How Long Is Maternity Leave in California?

Under California law, companies with at least five employees must provide new parents with 12 weeks of unpaid maternity leave. Similarly, companies with at least five employees must also grant up to four months of unpaid pregnancy-disability leave to workers who are unable to work due to pregnancy or childbirth.

10 Tips on California Law Expense Reimbursement Time Limit

Under California labor law, employers are required to reimburse employees for business expenses made during the course of their employment, so long as they are necessary and reasonable in nature. This means that an employer must pay an employee back for any financial losses the employee accepted as part of doing his or her job.

What are the 4 Caregiver rights in California?

Employers often face lawsuits from caregivers for violating caregivers’ rights, such as basic wages. A caregiver is an individual who has taken on the role of both care provider and advocate.

How to Find an Employment Lawyer

Often referred to as work lawyers, employment lawyers are attorneys who specialize in employment law and represent workers in all positions across many industries. In California, employment lawyers understand workers’ rights according to the state’s labor laws and can help wronged employees sue and seek damages for improper or unlawful treatment at a workplace.

6 Tips for Prorated Vacation

Employees can earn time off according to different methods, which are normally specified in an employee handbook. Some employers choose to have employees accrue vacation time based on hours worked.

© Copyright | Nakase Law Firm (2019)