What Happens If an Employee Works Unauthorized Overtime?

An employer is required to pay an employee who works overtime regardless of whether the employer knows about it or not. 

By Brad Nakase, Attorney

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Does an Employer Have to Pay for Overtime If an Employee Worked Unauthorized Overtime?

Yes, they do. In the state of California, employers must pay overtime. This includes whether they gave their permission for an employee to do so or not. This rate will be 1.5x an employee’s normal rate of pay, in any case. As long as an employee worked over eight hours within a 12-hour workday, they get overtime. This also includes an employee working over six days consecutively within a week. Any time they work beyond 12 hours in a given day will be paid 2x their normal rate.

Although an employer is required, by law, to pay for overtime, they have a right to discipline one of their workers after the fact. Furthermore, an employee is not allowed to hide the fact that they worked overtime from their employer. Employers have to maintain precise time records for all employees working for them. They are required to pay for the correct amount of time their employees work for them.

There are a few eligibility requirements for receiving overtime. The worker must be a nonexempt worker that is at least 18 years old. If the worker is under 18, the worker must to be at least 16. Furthermore, the worker is not subject to going to school or subject to any restrictions when it comes to working. If all of these eligibility requirements are met, the worker must be given overtime by your employer.

When Must Overtime Be Paid Out?

Overtime has to be paid prior to, or on, the payday of the following normal payroll period after when overtime was earned. Time actually worked is required to be paid within the pay period of when those hours were worked. Overtime payment can be postponed into the next pay period, but no further than that. If the worker sue the company for unpaid overtime, the employer must hire an employment defense attorney to defend the unpaid overtime claim.

What Steps Do You Take After Filing a Wage Claim?

When an employee completes a wage claim with the Labor Commissioner’s Office, the worker will get sent to the Deputy Labor Commissioner. This individual will ascertain how to move forward. They will base their determination given what the circumstances surrounding the claim are. There are three routes which a wage claim can take. It can be referred to a conference, or referred to a hearing, or dismissed entirely.

When the Deputy Labor Commissioner decides to hold a conference, both the employer and employee get an official notification by mail. This notice will include the day, time, and location of the conference. Its purpose is to ascertain how valid the claim is. It will also be determined whether the wage claim can get resolved without moving on to a hearing. If there is no resolution within a conference, then the claim has to go to a hearing.

Once it goes to a hearing, the employer, employee, and any witnesses, will testify under oath. The entire event is recorded. After the hearing is over, an Order, Decision, or Award (ODA) will be served.

Both the employee and employer both have the right and option to appeal an ODA. If either one of them chooses to do so, the wage claim gets moved to a civil court. This entity will conduct a trial. In it, both the employer and employee will get to bring forth evidence and witnesses. All of the evidence and testimony that appeared at the hearing will be set aside and not considered by the court. If an employer appeals, the DLSE can represent an employee if they do not have the money to hire their own attorney.

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