Non-exempt employees in California must be paid overtime if:
- They work over eight hours in one workday; they are entitled to one and a half times the normal rate of pay they receive for all hours over eight. This law is one of the most progressive in the country, as not all states provide this benefit.
- If they work twelve hours in any one workday, the overtime pay also applies to the hours worked after the eighth hour.
- They work eight hours on the seventh consecutive day of work they are entitled to overtime pay.
This law breaks down to say any employee who works more than eight hours during one workday or more than forty hours during one workweek- are entitled to overtime pay of one and one-half times their regular hourly wage.
Who is Protected by California Wage Laws?
The overtime law in California applies to all non-exempt employees working in the state. Non-exempt employees are generally paid by the hour, but the overtime laws also include non-exempt employees who receive a wage based on piece work, daily rates, or a salary. There are some exemptions to the California overtime law.
An exemption is when the law does not apply to a specific group or classification of employees. Employees who do not meet specific requirements of an exemption are then considered non-exempt. The California overtime laws also have numerous exceptions. Exceptions are those in a particular group or classification who receive overtime pay, but at a different rate than the one and one-half times their wage.
- Exemptions from the California Overtime Law include:
- Executive, Administrative, and Professional employees*
- Employees who work in the computer software field that receive a wage paid on an hourly basis, and who meet all of the requirements*
- Employees who are employed directly by any political subdivision, or State. These are employees working for the county, city, or a special district
- Any person considered an ‘outside salesperson’ *
- Those who are the parent, spouse, child, or a legally adopted child of the employer
- An employee or individual who participates in a national service program, such as the Peace Corp
- Those who drive and have their hours regulated by section under Section 395.1, Hours of Service, Title 49 of the U.S. Department of Transportation *
- Employees whose earnings are more than one and one-half times the minimum wage and exceed their compensation represented by their commissions
- Student nurses who are enrolled in an accredited California Board of Registered Nursing or who are enrolled by the Board of Vocational Nurse and Psychiatric Technician Examiners
- Employees who entered into a collective bargaining agreement *
- Those who drive taxicabs
- An airline employee who exceeds forty hours but less than sixty hours during a workweek as a result of a temporary modification in their regular work schedule not required by their employer and arranged by the request of the employee
- Employees who are employed full-time by a traveling carnival
- Crew members who work on a commercial fishing boat, Section 7920 et seq under the Fish and Game Code *
- Those employed as professional actors
- Those working as motion picture projectionists
- News editors, announcer, or chief engineers working for a TV or radio station in a town or city with a population of 25,000 or less
- Those employees whose work is mainly intellectual, creative, or managerial, and demands discretion and independent judgment and who receives not less than two times the monthly State minimum wage for full-time work
- Personal attendants who are not covered under the Domestic Worker Bill of Rights *
- Any employee who is under the age of 18 and is working as a babysitter for a minor child of the employer in their home
- Exceptions to the California General Overtime Law
- Employees subject to an adopted alternative work schedule *
- Those who work in the healthcare industry and work an adopted alternative work schedule
- Employees of a hospital or institution engaged in the care of the elderly, mentally ill, sick, or otherwise defective and live on the premises where employment is secured
- Counselors who work in camps *
- Those employed by a nonprofit organization as a personal attendant
- Managers who live on the premises for the aged where there are less than eight beds
- Those who are responsible for children under the age of 18 who require 24-hour care in a residence
- Ambulance drivers and attendants who are scheduled for a 24-hour shift
- Those who are employed by a ski establishment during the active ski months
- Extra players
- Minors unless they are 16 or 17 years of age and by law are not required to be in school
- Any other employee who is otherwise not exempt or excluded under the provisions of Order 14 (regulates agricultural occupation wages, hours, and working conditions)
- Irrigators and sheepherders in an agricultural occupation
- Employees who ‘live-in’ their employers home
- Non-live-in employees who are otherwise not excluded or exempted from the overtime provisions of Order 15 (regulations of wages, working conditions, and hours for household occupations)
Determining Workdays and Workweeks
Non-exempt employees are entitled to overtime when you work more than eight hours during your regularly scheduled workday. Employers in California should establish a specific start time of the workday so that overtime can be calculated correctly. Your workday is any consecutive 24-hour period in which you start work at the same time each calendar day. You may begin at any time of the day for your workday.
There are different ways in which workdays are established for different classes of employees. If your workplace does not have a set workday starting time, then workday is considered to begin at 12:00 in the a.m. and will run through midnight.
It is not allowed to average two or more workdays together when establishing overtime pay. Daily overtime is due to an employee on the hours worked on each given workday. Once your employer sets the workday, it has to stay consistent unless there is a legitimate business reason for a change.
The California overtime law also guarantees employees who work more than forty hours during their scheduled workweek overtime pay. Your employer should establish which workday starts the week to calculate your overtime pay properly.
The workweek is seven consecutive days beginning with the same calendar day each week according to California law. Your employer can set up different workweeks for different employees, but once those weeks are determined, they should remain the same. The change in a determined workweek can only be made if it is intended to be permanent and is not an attempt to evade overtime obligations.
What are Alternative Workweeks?
Non-exempt employees have a right to earn overtime by working more than eight hours in one day under California law. There are circumstances; however, where an employer can offer or adopt an alternative schedule which will allow employees to work up to ten hours in one day without having to pay them overtime.
Alternative workweeks are where an employer will schedule up to ten hours in one workday and still keep the total hours worked in a week at forty. Some industries, such as health care are allowed to adopt these alternative workweeks, but before an employee accepts such an agreement, some requirements must be met:
- The employer must propose the change. The employer must provide a written agreement outlining the alternative workweek schedule. The proposal can include a menu of work schedule options for which each of the employees would be entitled to choose.
- The employer must disclose employee benefits. The proposal must disclose in writing what the effects of the alternative workweek will include such as wages, benefits, and hours. It must be stated there will be at least one meeting held to discuss the effects the alternative workweek will hold for all employees before it is voted on.
- An employee vote. There must be at least two-thirds or more of the employees who approve of the alternative workweek schedule which is held by secret ballot and during the employees’ regular working hours.
- Reporting of the results. The results from the secret ballot have to be reported according to the Division of Labor Standards Enforcement and must be posted within thirty days of results.
During the process of determining whether or not there will be an alternative workweek, employees cannot be retaliated against or punished for expressing their opinions or for either supporting or opposing the change. If the change goes through, the employer is still responsible for paying overtime wages for more than forty hours worked during a workweek.
Ways Employers Avoid Overtime Payment
Overtime payments can become costly to a business, and some will attempt to avoid these payments to cut down on their operating costs. Denying an employee overtime pay is against the law in California. The fact that it is illegal does not stop all employers from trying to avoid the pay with some of these tactics:
- Claims the worker is not qualified. Some believe that if an employee receives a salary, they are not entitled to overtime pay. The salaried employee must meet specific requirements for this belief to be true. Their salary has to exceed a specific set amount every week, and there are exceptions for certain industries. If the worker is a personal attendant, actor, works for certain broadcast news, is an irrigator, or is covered under a collective bargaining agreement, then they may be entitled to overtime.
- Asks employees to complete work outside of hours. Some employers will ask an employee to take work home over the weekend, or complete other work-related duties outside of the typical workday. Employees have the right to receive compensation for the hours they spend on these tasks.
- Misclassify employees. Some employers will title an employee as an independent contractor. Independent contractors do not earn overtime pay. If the employer controls the manner and time of work, and the employee is not allowed to work for others, then they are not independent contractors. Independent contractors also can hire their own employees and assistants, so if this is not the case, then the employee is not an independent contractor.
- Combine non-exempt duties with exempt. Some employers will ask an exempt employee to complete tasks that would typically fall under a non-exempt position. Employees are entitled to receive overtime rates for any overtime related to the non-exempt duties.
If you feel your employer has misclassified your position or used any of the above means to avoid paying overtime pay deserved, you should contact Workers Compensation Attorney Law Firm to help you claim the wage that you earned.
Can an Employee Refuse to Work Overtime?
Federal law does not have any rules preventing employers from requiring overtime hours from their employees, and California also permits mandatory overtime under their wage and hour laws. Workers in California can refuse overtime hours without being penalized if they have already worked 72 hours or more during the previous week.
- Mandatory overtime or forced work time is when your employer requires you to work more than your scheduled hours. The employer can declare extra work hours without the approval of employees.
There are some states which have passed legislation prohibiting or curtailing mandatory overtime, and if employers violate the laws, they face severe sanctions. Check with your attorney if your state has this legislation in place if you are experiencing issues with your workplace regarding overtime hours.
Courts are becoming sympathetic to workers who are faced with disciplinary action or face losing their jobs if they refuse to work the extra hours. California workers are protected by some of the best employee rights laws in the country, but some still face harassment or discrimination in their workplace, so it is important to talk with an attorney who understands California labor laws to protect your rights.
Non-exempt employees are not exempt from overtime. Working in the United States is ‘employment at will’ unless you have a written contract that guarantees your employment or limits the grounds for your discipline or termination. Unless there is a contract or a union has created a collective bargaining agreement, your employer is allowed to fire you at any time, and for reasons of their choice. There is no requirement for them to give you notice, or even a chance to correct a problem they deem requires your leaving their workplace. Refusing to work overtime hours could result in the termination of your job.
Federal laws are in place which makes it illegal for employers to fire their employees for specific discriminatory reasons such as national origin, sex, race, color, age, religion or disability, but that means only if you have been singled out for one of these reasons for being asked to go. If your employer is reasonably asking all employees to work overtime hours, not just you, they are not discriminating, and you are required to fulfill your employment obligations.
Your employer has the freedom to set their terms of employment, which includes your hours and wages. This freedom of employment at will gives your employer the power to terminate at will and refusing to work the hours you are being asked to fulfill means they can fire you. This rule does not mean you can’t talk to your employer about the matter. Overtime is expensive for employers, and if you have a valid reason for not working the extra hours, they may be able to work with you on reducing them.
Overtime Requirements under California Law
Overtime pay is an increase in your wages for working more than a certain number of hours in a day, or in a week. The amount of pay you receive will depend on how long your shift lasts and the number of days you have worked. When you have worked more than eight hours in one day, it means you are owed for any extra hours over the scheduled eight at a rate of time and a half. If you work over forty hours in a week, you will receive time and a half for any hours over forty. If you are working seven consecutive days in a week, you will receive time and a half for the whole seventh day. Should you complete more than twelve hours in one workday, you will get paid double time for those hours over twelve. For the last scale states, if you work more than eight hours on the seventh day of the week, you are entitled to double time.
When your employer fails to pay you earned overtime wages, it could be they don't understand the California hour and wage laws, or you could be a victim of wage theft. Understanding these laws is very important to both employers and employees. Employers want to ensure they are complying with the law, and employees want to ensure they are getting wages they’ve earned. This is a brief look at the California Overtime Laws.
Why There are Overtime Laws
Overtime pay serves two purposes. The first is to provide an employee a fair compensation when they sacrifice their free time by working longer hours. The second purpose is that having to pay overtime wages gives employers an incentive to hire more workers, so they don’t have to pay the higher wages.
Overtime laws serve essential goals, and this is why the courts in California interpret them liberally in favor of protecting employees. So if you find yourself having to fight for the overtime pay you deserve, you can know the courts will typically resolve them in your favor, the employee.
The Laws Governing Overtime Pay
California law and the federal government both require employers to pay employees overtime wages unless their job falls under one of the exemptions. Two laws govern overtime pay:
- FLSA- Fair Labor Standards Act under the federal government guidelines
- The California Labor Code under section 510
There are court cases and administrative regulations that interpret these laws. When the two different governing bodies, state and federal, differ in their rules, it is typical for the law which is most favorable to the employee will get applied to the case. California’s laws are more protective of employee rights and followed most in dispute cases.
The laws for overtime pay apply to anyone working within a business located in California, even if you do not have a residence in the state. It has not been determined under the law whether or not you are entitled to the protection if you work less than a day at a time as an out-of-state resident.
Determining ‘Regular Rate’ of an Employee's Wage
Your overtime pay is based on your ‘regular rate’ of pay. Computing the ‘regular rate’ depends on how you are compensated for your work. If you receive a wage by the hour, and there are no other forms of compensation, then the hourly rate of pay is your ‘regular rate.’
If you are a non-exempt salaried employee and usually work forty hours a week, your overtime pay compensation is determined by dividing your weekly salary by forty. The results of this would be how the time and a half are calculated on the hours you work over forty.
It can become harder to compute the ‘regular rate’ under different circumstances, such as for employees who receive more than one form of wage or compensation for their work. The rule that is typically followed is the overtime pay will be computed on the hours one works during the workweek, excluding overtime.
An important note to remember for employees is that your employer cannot designate rates of pay in an intention to evade paying overtime. Employers must calculate consistently to compensate their employees for overtime worked accurately. One example would be that your employer cannot pay a higher wage during weeks they know will not include any overtime hours, and then lower that wage when it looks like overtime is going to be needed to finish specific jobs. This reduction in hourly wages would result in paying less overtime pay for the employer, and it is considered illegal to alter wages in this manner.
Defining Hours that have been Worked
Employers have to pay overtime to non-exempt employees for all the hours they have worked more than eight hours a day or more than forty hours in one week, including any hours worked on the seventh day in a workweek. There are two tests which will determine if an employee has worked during a specified period of time:
- While performing the work or task, the employee is under the control of the employer
- The employee has been permitted to perform the work
These tests are independent of each other as the hours during which an employee is subject to their employer’s control will count as ‘hours worked’ even if the employer is not required to work during those same hours.
Find Help with California Overtime Law Near Me
California’s wage and hour laws are complex, but one thing is clear- you are entitled to overtime pay. If you are not fairly compensated for overtime wages, contact Workers Compensation Attorney Law Firm at 310-956-4277. They are there for you to make sure your work time is fair and compensated.
- Executive exemption is a person employed in an executive position whose work responsibilities and duties include managing the enterprise for which they work for, or of a recognized department. It is someone who regularly directs the work of two or more employees, and has the authority or power to suggest the firing or hiring of new employees, or employees’ promotions and advancements. These employees exercise independent judgment and discretion and are mainly engaged in duties that meet the test of the exemption. An executive employee must earn a monthly salary equal to no less than two times the state minimum wage for full-time employees.
- The administrative exemption applies to an employee who is in an administrative position and performs non-manual or office work duties that are directly related to the business’s general operations. This exemption includes administration is a school system, educational establishment or institution, department, or a subdivision directly related to academic instruction or training. These are employees who regularly exercise independent judgment and discretion and assist the owner or proprietor in an administrative capacity. They are employees who work under general supervision or who work along technical or specialized lines that require experience, knowledge, and training. They can execute, under general supervision, particular assignments to other employees and are primarily engaged in work duties that meet the test for exemption. An administrative employee must earn a monthly wage, which is equal to no less than two times the state minimum wage for a full-time employee.
- The professional exemption applies to an employee who has been licensed or certified by the State of California and practices law, dentistry, medicine, architecture, accounting, teaching, optometry, or who is primarily in an occupation recognized as a learned profession. These professionals require advanced knowledge in a specific field or science acquired through a prolonged course of specialized instruction and study. Their learning process is different from that earned through general academic education or an apprenticeship. The work they perform is original and creative in their recognized field, and the result of their work depends primarily on their imagination, invention, or talent. The professional is one whose work is predominantly intellectual and varied as opposed to a routine manual, mental, or physical occupation, and their output or result cannot be standardized to a given time period. A professional employee regularly uses independent judgment and discretion as part of their duties, and they must earn a salary no less than two times the amount of the state’s full-time employee minimum wage standard.
- An employee in the computer software field exemption is an employee who mainly works as an intellectual and creative person using independent judgment and discretion. These employees generally work with the application of systems analysis techniques and procedures, as well as consult with the users of those procedures. They determine hardware, system functional specifications, and software procedures. They are also responsible for designing, developing, documenting, analyzing, modifying, and testing computer programs and systems. These employees are highly skilled and proficient in practical and theoretical implications concerning computer system analysis. They can program and engineer the software. An employee in the computer software field must earn no less than $41 an hour. This hourly wage does adjust each October, which goes into effect every January.
- Outside salespersons are those who are 18 years or older and regularly work more than half of their workday away from the employer’s established place of business. They are engaged in the selling of intangible or tangible items, or securing orders and contracts for the use of facilities, products or services for their employer.
- Hours of Service for Drivers, Title 49, Section 395.1- 395.13- In California, all workers are entitled to overtime pay unless their job requirements meet one of the exemptions. Most truck drivers are exempt under California law if they are employees whose hours of service are regulated by either Title 13 of the California Code of Regulations, Section 1200. Drivers are also not entitled to overtime if they are regulated by the U.S. Department of Transportation Code of Federal Regulations, Sections 395.1- 395.13 under Title 49 of the Hours of Service of Drivers. If your driving or hours are governed by one of these sections, you are not entitled to receive overtime pay under California law; however, you may qualify under Federal overtime laws.
- Collective bargaining agreements are negotiated between an employer and a labor union where it has been set forth specific terms of employment for the employees. You are subject to this agreement if you are working under the labor union. The contract can include vacation times, working conditions, wages, working hours, overtime pay, and health insurance benefits.
- Fish and Game Code identifies a person as the owner of a boat or vessel who uses said vessel for profit or uses the vessel as a commercial fishing boat. It also includes those who operate a guided boat.
- A personal attendant is defined as one who babysits or someone employed by a nonprofit organization which supervises, feeds, or dresses another person or child due to their advanced age, mental deficiency, physical disability, or need for supervision.
- Alternative workweek schedules refer to any regularly scheduled employee who is required to work more than eight hours during 24 hours.
Camp counselors or program counselors are those on staff with the primary responsibility to direct and supervise the living-group campers. It includes those who are in charge of directing program relationships with campers.
If you believe you are owed backpay please call our Los Angeles labor attorney today for a free consultation.