Unpaid Overtime

The California Supreme Court has recognized that California’s overtime laws serve the important public policy goal of protecting employees against “the evil of overwork.” Premium pay regulates maximum hours consistent with employees’ health and safety needs. The statutory right to receive overtime pay is unwaivable. California-based employers must comply with California overtime provisions for all work performed in the state.

Under both federal and state law, overtime compensation is based on a multiple of an employee’s “regular rate.” Under the California standard, which is more protective than the federal, employers must pay one and a half times an employee’s “regular rate” if he or she works more than 40 hours per week or more than 8 hours per day; and double the “regular rate” for work in excess of 12 hours per day.

The “regular rate” includes hourly earnings, salary, piecework earnings, commission, bonus, value of meals and lodging. However, neither meal-period premiums nor premium holiday pay voluntarily offered by an employer are part of an employee’s “regular pay rate” for purposes of overtime calculation. Tips and gratuities are not included as “wages” paid by the employer and thus are not included in the employee’s “regular rate” of pay for purposes of determining overtime compensation.

California employees in certain (but not all) industries and occupations are entitled to overtime pay after working either 40 hours per week or eight hours in on day (with double-time after 12 hours in one day), and for working more than six days in any workweek. Thus, employees who work 10 hours a day on 4 days a week (40 hours a week), are entitled to 2 hours overtime for each day on which they work more than 8 hours (unless a qualified Collective Bargaining Agreement provides otherwise or unless pursuant to a duly adopted alternative workweek schedule.

As discussed in the “Misclassification of Non-Exempt Employees” section, only certain categories of employees are exempt from California wage and hour laws, including the so-called “white collar” exemptions for professional, administrative and executive employees; outside salespeople; commissioned salespeople; and certain truck drivers.

Under California law, employers may not require employees to take time off in lieu of overtime compensation. But employees have the right to request compensatory time off at the rate of one-and-one-half hours off for each hours of overtime worked.

If you believe you have not been paid your overtime earnings at the correct rate, we can help. Many of our successful class-action lawsuits involved overtime claims, including a case where we procured the largest per-person unpaid wages award in California. We are proud of our record of winning over $100 million for our clients who earned but were not paid their overtime pay.