Is It Illegal For Employers To Not Pay Overtime?

Yes, it is illegal for employer to not pay overtime because California law requires that employers pay overtime, whether authorized or not.

By Brad Nakase, Attorney

Email  |  Call (888) 600-8654

Get Smarter: Search my blogs

California overtime law requires overtime pay for overtime work. Getting overtime means you get paid 1.5x the normal rate you get paid at. This extra pay is only possible to receive when you work over 40 hours over the course of a week. This also applies if you work over eight hours in a single day. By law, a day of work is when you work eight hours. Anything beyond working six days in a given week is also considered to be overtime work.

Overtime is 1.5x the normal rate you get paid at. The hours you work have to be over eight hours within a 12-hour workday. They also have to be the first eight hours on the seventh day of working within a given week. Also, overtime increases to being 2x the normal payment rate when you work over 12 hours in a given day. You also get twice the amount of pay when you work over eight hours on the seventh consecutive day of working.

Although the overtime law must be adhered to, there are several exceptions. These exceptions are called “exemptions” and emphasize certain types of employees are not subject to receiving overtime. Please contact our unpaid wage attorney to determine if you’re owed overtime pay.

Can an Outside Salesperson Earn Overtime Pay?

In California, outside salespeople are not allowed overtime pay. This is true if the salesperson meets the following conditions:

  • A minimum of 18 years old
  • At least half of work time takes place away from the employer’s business
  • Sell contracts, products, services, or facility use

Can Unionized Employees Earn Overtime Pay?

In California, unionized workers are not permitted overtime pay. This is true if their collective bargaining agreement addresses:

  • Work conditions, hours, and wages
  • A normal hourly wage that is thirty percent more than the minimum wage in California
  • Overtime hours for wage rates

Unionized employees are considered “non-exempt” if their collective bargaining agreement does not meet the above three conditions. In this case, according to the state’s wage and hour laws, the employees may receive overtime pay.

Do Certain Occupations Have Their Own Overtime Rules?

California employees in certain occupations do not receive overtime pay. Some of these occupations include the following:

  • Camp counselors
  • Managers of senior homes
  • Full day nannies
  • Agricultural workers
  • Live-in household employees
  • Personal assistants
  • The husband/wife, parents, and children of the employer

Do Independent Contractors Receive Overtime Pay?

In California, independent contractors do not qualify for overtime pay. Someone is an independent contractor if the following is true:

  • They perform a service according to an employment contract for specified payment
  • They have control over the way the result is achieved

Does an Employee Receive Overtime Pay for Working More Than 6 Days in a Row?

Nonexempt workers are entitled to receive overtime pay if they work seven days in a row in a single week.

Employers are allowed to determine when a workweek starts and ends. So, working 7 days consecutively does not mean an employee is automatically eligible to receive overtime. This is because those 7 days may actually span two different weeks.

It is possible that an employer will have different schedules for different employees. It should be noted that an employer is not allowed to change an employee’s workweek to try to avoid paying overtime.

Can an Employee Be Paid Overtime If Their Employer Did Not Allow It?

In California, nonexempt workers are entitled to overtime pay even if their employer did not authorize the overtime. It is only required that the employer either was aware or should have been aware that the individual was working additional hours. Legally, the employee was “suffered or permitted to work, whether or not required to do so.”

That said, employers are within their rights to punish employees for working unauthorized overtime. Similarly, employees are not allowed to purposefully work extra hours and not tell their bosses.

It should be noted that employers may never ask their employees to work “off the clock.”

Can an Employer Force an Employee to Work Extra Hours?

In California, overtime laws allow employers to require mandatory, or forced, overtime. Employers are also allowed to punish, or even fire, workers who refuse to work overtime. The exception to this rule is that employees can refuse to work the 7th day of a working week. Employers are not allowed to fire an employee for this refusal.

The purpose of laws related to overtime pay is to show employers that it is financially in their interest to hire more employees rather than pay overtime. This means more individuals are employed and current employees do not have to work overtime. Also, the employer would not have to pay time-and-a-half or double-time rates.

Can an Employer Force an Employee to Accept Comp Time Pay Rather Than Overtime?

In California, employees do not have to take paid time off (PTO or comp time) rather than receiving overtime pay. Employees are allowed, however, to ask an employer for comp time instead of overtime if the following are true:

  • The worker is full-time and works 40 hours a week
  • The worker asked for comp time instead of overtime in writing
  • The employee does not yet have over 240 hours of comp time
  • The employee already had a written agreement with the employer concerning comp time

The compensating time needs to be the same as the rate for overtime. This means that if the overtime rate is time-and-a-half, the employer needs to provide 1.5 hours of PTO for every hour of overtime worked.

What Is an Employee’s Normal Rate of Pay?

An employee’s regular rate of pay is contingent on whether he or she is salaried, hourly, or piece-rate. Regardless of their designation, they should not be paid less than minimum wage. In California, companies use an employee’s normal rate of pay to calculate overtime pay.

What Is the Regular Rate of Pay for Hourly Employees?

In California, the normal rate of pay for nonexempt, hourly employees is usually their hourly rate. This means that if someone makes $15 per hour, their normal rate of pay is $15 an hour. As a result, their overtime pay would be $22.50 per hour for time-and-a-half pay while $30 per hour for double-time pay. We calculate these rates by doing 1.5 times $15 and 2 times $15.

However, if that employer pays a single employee two plus rates in one week, then the regular rate of pay is figured out by dividing the employee’s total payment (including any overtime) by the total hours worked that week. The employee’s normal rate of pay is the weighted average.

Differences in shifts and the “per hour value” of non-hourly payments should also factor into the normal rate of pay.

Sometimes, hourly employees get a flat-sum bonus. These types of bonuses are a reward for time put in, skill, or can function as an incentive to keep working for the employer. To calculate the regular rate of pay, this bonus would be divided by the regular hours worked and then added to the hourly rate.

Some payments are excluded from the normal rate of pay. These include:

  • Gifts
  • Discretionary bonuses
  • Reimbursements
  • Pay during sick days or PTO
  • Premium pay for labor on holidays and weekends (the pay must be at-least one-and-a-half times the normal rate)

Is the Regular Rate of Pay for Piece-Rate and Commission Employees?

There are three primary ways to calculate the normal rate of pay for piecework and commission employees. These methods are:

  • The normal rate of pay is the commission or piece rate itself
  • The normal rate of pay is calculated by dividing the worker’s weekly pay by the hours labored
  • The normal rate of pay is the group rate. The group rate is calculated by dividing the sum pieces sold by the number of individuals in the group. Each employee then gets the group rate multiplied by the number of hours the individual worked.

For overtime hours, the time-and-a-half and double-time laws apply.

Sometimes, an employee might earn different rates from the same company if he or she performs different types of jobs. For individuals who earn over two rates, their rate of pay is the “weighted average.” This means that the week’s total earnings are divided by the total hours worked.

Whether an Employee Can Be Required to Work Overtime

Generally speaking, an employer can enforce an employee’s hours and schedule. Also, in most cases an employer can punish an employee, or even fire them, if the employee does not work planned overtime. That said, an employer may not punish an employee for choosing not to work on the seventh day in a week. In fact, the employer would be disciplined for preventing the employee from having a day of rest. However, a worker who is aware of their right to a day of rest may choose on their own to work instead.

When an Employer Does Not Pay an ODA

Sometimes, when an Order, Decision, or Award (ODA) is granted in an employee’s favor, an employer may not pay the ODA. In this case, the Division of Labor Standards Enforcement (DLSE) will have the ODA be made a decision against the employer. This judgment will have the same force as any other money judgment enforced by a court.

Employer Retaliation for Wage Claims

If an employee faces retaliation from an employer for filing a wage claim, then the employee can file a discrimination/retaliation claim with the Labor Commissioner’s Office. Also, the employee can choose to file a claim against their employer in court.

Have a quick question? We answered nearly 2000 FAQs.

See all blogs: Business | Corporate | Employment Law

Most recent blogs:

HRIS - The Essential Tool for HR Management

HRIS: The essential tool for HR management

HRIS systems help manage and automate payroll, timekeeping, and benefits administration, enhancing overall HR efficiency. Modern cloud-based HRIS solutions offer increased data storage, security, and seamless integration with other HR applications.
What Is a Statutory Employee - Criteria, Taxation, and Example

What is a Statutory employee? Criteria, taxation, and example

A statutory employee is a freelancer treated as an employee for tax purposes, meeting specific criteria for Social Security and Medicare. These workers receive W-2 forms, allowing tax deductions for job-related expenses, but typically lack regular employee benefits.
Disparate Impact - What it Means, How it Works, History

Disparate Impact: What it means, how it works, history

Disparate impact refers to neutral policies that disproportionately affect protected groups, impacting areas like housing and employment. Federal regulations allow evaluating these impacts to identify and prevent discrimination.
What is Employer of Record (EOR)

What is Employer of Record (EOR)?

An Employer of Record (EOR) simplifies global expansion by handling payroll, benefits, and compliance, saving businesses time and resources. Companies can achieve a global presence without the complexities and costs of establishing a new office or entity.
What is EPL insurance

What is EPL insurance?

EPL insurance protects businesses from the high costs and disruptions of employment claims, covering legal fees and settlements. Safeguard your company from claims of harassment, discrimination, and wrongful termination with comprehensive EPL insurance.
Does employer match count towards the 401k limit

Does employer match count towards the 401k limit?

Employer 401k matches do not count towards your individual contribution limit, offering extra retirement savings. In 2024, the total 401k contribution limit, including employer matches, is $69,000 or 100% of your compensation.
What are employer payroll taxes

What are employer payroll taxes

Understand employer payroll taxes and the complexity of calculating the correct amounts, including contributions to Social Security and Medicare. Learn the importance of accurate payroll tax management to avoid potential penalties.
What is a Professional Employer Organization

What is a Professional Employer Organization?

Discover how a Professional Employer Organization (PEO) can streamline your HR responsibilities and provide expert support for a fraction of the cost. Learn about the various services offered by PEOs and how they differ from staffing agencies.
Everything you need to know about employee retention credit

Everything you need to know about employee retention credit

Explore the benefits of the Employee Retention Credit, a tax incentive designed to encourage businesses to maintain their workforce during the COVID-19 pandemic. Learn how to apply retroactively for this credit and maximize your business's financial recovery.
Will my employer know if I take a 401k loan

Will my employer know if I take a 401k loan?

Learn how taking a 401k loan is visible to your employer and understand the implications and conditions they might impose. Discover privacy rules around your 401k and employer's role in setting loan terms.
The largest employer in the US

The largest employer in the US

Discover the biggest employers in the US and learn which industries dominate the employment landscape, with insights into post-Covid economic recovery. Understand job stability and opportunities within these large companies despite economic fluctuations.
How to write a retirement letter to your employer

How to write a retirement letter to your employer

Craft an effective retirement letter with these straightforward tips, ensuring a smooth transition and maintaining positive relations as you step into retirement. Discover how to communicate your retirement plans clearly and respectfully.
What is employer branding

What is employer branding?

Discover the power of employer branding to attract top talent and improve your company's reputation. Learn key strategies to enhance your organizational appeal to prospective employees.
Questions to ask in an interview as an employer

Questions to ask in an interview as an employer

Use these key interview questions to gauge whether candidates align with your company’s culture and job requirements. Evaluate potential hires effectively with tailored queries in any interview setting.
Performance Appraisal

Performance Appraisal

Performance appraisals are crucial for making decisions about promotions, bonuses, and training; they can significantly enhance employee productivity if utilized effectively. This article details how to conduct effective performance reviews and utilize them to boost engagement and performance.


Absenteeism in the workplace can severely impact productivity and revenue, costing billions annually. This article addresses effective strategies and the importance of a skills matrix in managing absenteeism.
Recruitment Process

Recruitment Process

Learn about the full-cycle recruitment process, its benefits, and the six primary steps from preparation to onboarding in this detailed guide. Understand how a streamlined recruitment approach enhances efficiency and candidate experience.
Employee Onboarding

Employee Onboarding

Discover how effective onboarding strengthens employee-employer relationships, enhancing retention, job satisfaction, and performance. Learn to design tailored onboarding processes to build lasting bonds with new staff in this detailed guide.
Examples Of Orientation

Examples Of Orientation

Understand how a structured job orientation can ease new employees into their roles, improving both productivity and retention. Learn about the essential elements that make up an effective job orientation program.
Interview Guides

Interview Guides

Review the benefits of using an interview guide to streamline candidate evaluations and ensure a consistent interview process across your organization. Delve into the seven essential components that make up an effective interview guide.
Employee Performance Metrics

Employee Performance Metrics

Review the essential role of employee performance metrics in evaluating workforce productivity and effectiveness within an organization. Analyze the different categories of performance metrics and how they impact strategic HR decisions.
Strategic Workforce Planning

Strategic Workforce Planning

Learn about the importance of strategic workforce planning in ensuring a business is equipped for success both now and in the future. Discover how implementing this process effectively meets a company's current and future staffing needs.
Learning Is Developmental

Learning Is Developmental

Grasp the significance of learning and development in fostering a skilled workforce capable of facing challenges and thriving in the business world. See how strategic employee training is vital for achieving organizational goals and securing a competitive advantage.
Human Resources Planning Process

Human Resources Planning Process

Understand the critical role of human resource planning in preparing a workforce for future needs and maintaining a competitive edge. Examine the structured steps and benefits of effective HR planning processes in achieving organizational goals.
Compensation Types

Compensation Types

Gain insights into the various types of employee compensation and understand how to create competitive benefit packages to attract and retain talent. Review the importance of a well-structured compensation plan in enhancing employee satisfaction and boosting retention.
Sabbatical Leave

Sabbatical Leave

Understand the benefits of sabbatical leave for both employees and employers, and the key elements of effective sabbatical policies. Explore successful sabbatical programs from companies like Autodesk and Patagonia, and their impact on workplace dynamics.


Navigate the world of HR KPIs to measure and enhance your human resources management effectiveness and align with organizational goals. Understand the vital role of KPIs in achieving fair compensation and strategic HR outcomes.

Contact our attorney.

Please tell us your story:

0 + 4 = ?

© Copyright | Nakase Law Firm (2019)