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

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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.

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