Question

Am I Entitled to Overtime Pay in California?

Brent S. Buchsbaum - Employment Litigation - Super Lawyers

Answered by: Brent S. Buchsbaum

Carlin & Buchsbaum LLP
Long Beach, CA
Phone: 562-432-8933
Fax: 562-435-1656

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Answer

Any employer who is covered by California’s Labor Code Section 510 must pay overtime to eligible workers. But who is an eligible worker? Many California employers cannot properly answer that question. As a result, a large number of workers do not receive the overtime pay they are entitled to. 

Let’s take a deeper look at who is eligible. All employees are classified as either “exempt” from overtime laws or “nonexempt.” Some of those who are exempt include: 

  • Executive, administrative and professional employees
  • Employees in the computer software field who are paid on an hourly basis
  • Outside salespersons
  • A parent, spouse, child or legally adopted child of the employer
  • Employees whose earnings exceed 1½ times the minimum wage and earn more than half their compensation in the form of commissions
  • Professional actors
  • Employees who are engaged in work that is primarily intellectual, managerial or creative, and which requires the exercise of independent judgment, who earn not less than twice the minimum wage

But these descriptions do not tell the entire story. Just because someone has the title “manager,” receives a salary, or is treated as an independent contractor, does not mean that the employee is really exempt from overtime laws. Those employees who think they have been misclassified as exempt should speak with an employment law attorney. They may indeed be eligible for overtime pay.

How Much Overtime Pay Does an Employer Have to Pay? 

Eligible workers (those properly classified as exempt) are entitled to no less than 1½ times the hourly rate for hours worked in excess of 40 hours per week or eight hours per day, or for the first eight hours worked on the seventh day of work in a workweek. In addition, any work in excess of 12 hours in a single workday must be compensated at no less than twice the hourly rate. There are certain exceptions to these requirements. 

Nonexempt workers who have not received the overtime pay they are entitled to can take legal action in the form of a wage claim filed with Division of Labor Standards Enforcement or a wage and hour lawsuit. If successful, they may be able to obtain: 

  • Back overtime pay
  • Attorney fees and court costs
  • Civil penalties assessed the employer under California law
  • A civil penalty of up to $10,000 assessed the employer under the federal Fair Labor Standards Act

California has some of the strictest wage and hour laws in the country. Here are some other important facts about overtime pay in California: 

  • A nonexempt employee cannot waive the right to overtime pay.
  • An employer cannot make an employee “work off the clock.”
  • An employer can require an employee to work overtime.
  • An employer must pay workers for time spent in work setup, work tear down, and clean up activities.
  • California wage and hour laws require employers to provide meal breaks to nonexempt employees who work at least five hours, though employees who work no longer than six hours can waive the break. 

There are many other aspects of California wage and hour laws that are too complex to discuss here. If you have questions, give Carlin & Buchsbaum, LLP, a call. 

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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