If you’re not getting paid for overtime, is your employer breaking the law? It depends on your specific circumstances, but generally, the answer is yes – there are both state and federal laws in place that require employers to compensate employees fairly for overtime! Read on to learn how to determine if your employer is acting illegally and what legal steps you can take to recover the rightful wages you are entitled to.
Most California employees aren’t given a full explanation of labor laws upon being hired by an employer, but there are numerous laws – both at the state level and the national level – that protect employees when it comes to being paid. Since employees are often unaware of these laws, employers frequently attempt to take advantage of their employees in order to keep more profit in their pockets. “Is not paying overtime illegal in California?” is one of the most regularly searched questions on Google. This makes sense, as the rules around overtime pay are confusing, complicated, and changing, and because withholding fair overtime pay is perhaps the most common form of wage theft in California.
Not paying overtime is illegal in California, but not in every situation (again – the rules are complex!). If you believe that you earned overtime pay and did not receive it, our southern California overtime attorneys can help you confirm that your employer did break the law, calculate what monetary amount you should have earned, expose any other areas where you may not have been paid correctly, explain your rights, and tell you what we can do to help you fight for justice and back pay! Call today to schedule a free, confidential consultation with our knowledgeable legal team.
What is overtime pay?
Overtime pay refers to payment for hours you work beyond the standard work schedule, which is 40 hours per week in a single workweek (7 consecutive 24-hour days).
Are all employees entitled to overtime pay?
No – not all employees are entitled to overtime pay – but most are.
One of the popular myths about overtime is that you can only get it if you are paid hourly, not salaried, but this is not true. That myth comes from two main categories that employees can be classified as: exempt and non-exempt. Exempt employees are generally not eligible to earn overtime pay. While one way to think of the differences between these categories is salaried and hourly pay, that doesn’t account for all of the nuances involved. How you are classified depends on many factors, such as the type of work you do, how much you make, how much discretion you have over your job, and more. So, just because you earn a salary doesn’t mean you don’t deserve overtime pay!
There are 22 specific exemptions to receiving overtime pay at all that are listed by the California Department of Industrial Relations (DIR), and 15 special exceptions to general overtime rules (which we’ll discuss below). The 22 exemptions are as follows:
- “Executive, Administrative, & Professional Employees” are exempt from overtime.
- Employees in the computer software field who are paid on an hourly basis are exempt from overtime.
- Employees directly employed by the state government, county government, or city government are exempt from overtime.
- Outside salespersons (spend half their time away from the employer’s place of business, selling) are exempt from overtime.
- Employees who are immediately related to the employer are exempt from overtime.
- Individuals who are participating in a national service program are exempt from overtime.
- Drivers whose hours are regulated by the State or by federal law are exempt from overtime. Taxicab drivers are also exempt.
- Employees covered under a collective bargaining agreement, with conditions, are exempt from overtime.
- Employees who make more than 1.5x the minimum wage and more than half of their payment through commissions are exempt from overtime.
- Student nurses attending an accredited school are exempt from overtime.
- Airline employees who work less than 60 hours a week are exempt from overtime, in certain situations.
- Full-time carnival ride operators employed by a traveling carnival are exempt from overtime.
- Crew members employed on a commercial fishing boat are exempt from overtime.
- Professional actors are exempt from overtime.
- Motion picture projectionists are exempt from overtime.
- Announcers, news editors, or chief engineers employed by radio or TV stations in towns with populations less than 25,000 are exempt from overtime.
- Personal attendants who aren’t covered under the Domestic Worker Bill of Rights are exempt from overtime.
- Babysitters who are under 18 caring for a child who is under 18 in the employer’s home are exempt from overtime.
- Employees who are engaged in intellectual, managerial, or creative work and who are paid more than 2x the monthly minimum wage are exempt from overtime.
If your job does not fall into any of these categories (the first of which is the broadest), the answer to the question “Is not paying overtime illegal in California?” is true, at least for your employer! That means that you are probably a non-exempt employee, and non-exempt employees are supposed to be paid for overtime.
Note that misclassifying employees as exempt is one of the most common tactics that employers use to pay their employees less. It’s extremely important to ensure that you are classified correctly; if you’re not sure, contact a wage & hour attorney who can clarify that for you during a free consultation!
How much should you be paid for overtime?
The answer to that depends on where you work in California, what you make regularly, and whether or not your job falls under one of the special exceptions). That’s because minimum wage requirements differ from county to county in California, and you are supposed to be paid the highest minimum wage that applies – the minimum wage that applies to you could affect how much you receive in overtime pay.
For example, the federal minimum wage is currently $7.25 per hour. But in California, the minimum wage was recently raised as of January 1, 2022, to $15 per hour, or $14 for small businesses with 25 or fewer employees. And in certain counties in California, the minimum wage is even higher – Sonoma, for example, has a minimum wage of $16.00. If you work in a county with a higher minimum wage than the state’s, you are entitled to be paid that minimum wage!
California overtime laws require you to be paid either one-and-a-half times your regular rate of pay or double your regular rate of pay (known as double time) depending on your situation. If you purely make a minimum wage, that means that you should be paid either 1.5x the minimum wage of your county or 2x the minimum wage of your county in overtime pay. If you make more than minimum wage, you should be paid 1.5x or 2x the normal amount you receive.
You have the right to be paid 1.5x your regular rate of pay for overtime when you work:
- Any hours over 8 in a single workday
- Any hours over 40 in a single workweek, or
- Any hours over 6 consecutive days in a single workweek.
You have the right to be paid 2x your regular rate of pay for overtime when you work:
- Any hours over 12 in a single workday, or
- Any hours over 8 on the 7th consecutive day in a workweek
For example, imagine you get paid $18 per hour at a high-end retail store. Because the store is busy and one of your coworkers has called in sick, your boss asks you to stay late for a few days; you end up working three 10-hour shifts on Monday, Wednesday, and Thursday. Even if you don’t hit 40 hours that week, that’s 6 hours of overtime; at one-and-a-half times your regular rate of pay, that would mean that you should get an additional $162 in your paycheck ($18 x 1.5 = $27 x 6 hours = $162).
Many California employees aren’t aware of the time-and-a-half or double-time laws that ensure they are paid fairly for the overtime work they do, or they only think that they should be paid overtime for work over 40 hours. If you aren’t getting paid correctly for overtime, or are not getting paid for overtime at all, your employer is technically breaking the law, and should be held accountable!
When should you receive overtime pay?
Overtime pay should be paid along with your regular paycheck. However, because your employer may need time to gather the funds or calculate your overtime correctly, they are allowed to pay you for overtime “no later than the payday for the next regular payroll period”.
If you don’t get your overtime pay by that date, your employer may incur fines, and you may be entitled to damages. Is not paying overtime illegal in California? It is, even if it was past due!
Can you sue if your employer failed to pay you overtime?
If your employer didn’t give you overtime pay at all, didn’t pay you correctly for overtime, or paid your overtime wages late, then you have a few options. You can let your employer know, in writing, that you are concerned that you weren’t paid for overtime and are requesting your proper wages. It’s possible that the employer just made a mistake or forgot. However, if the employer failed to pay you overtime on purpose, they aren’t likely to honor your request. You can file a claim with the Labor Commissioner’s Office, but this process is not guaranteed to yield results, and may be slow and tedious.
You can also sue your employer with the help of experienced overtime lawyers. This is the route that is most likely to get you compensated. You cannot be fired or demoted for taking legal action against your employer, and even undocumented immigrants are protected under state and federal labor laws. If you sue your employer and win, your employer may be required to pay for the costs of the lawsuit, including attorney fees; if you lose, most lawyers will not require you to pay their legal fee!
Trust Southern California Attorneys, A.P.C., to advocate for the maximum overtime compensation you deserve!
At Southern California Attorneys, A.P.C., we have over 60 years of combined experience on our top-notch wage & hour team. We can help you discover how much overtime pay you are entitled to and guide you every step of the way to winning damages! We are not intimidated by large corporate employers – we’re on your side. Our knowledge, experience, good relationship with local courts, and track record of success can give you an important advantage! If you work anywhere in California, and suspect that your employer is not paying you overtime, call our firm immediately to schedule a free and confidential consultation.