Many employees in California have at some point or another worked overtime. The additional hours you work weekly should result in additional wages which employers are mandated to give their employees. Unfortunately, some employers take advantage of their dedicated employees by violating their rights according to wage and hour laws in California. If you would like to learn more about wage and overtime laws in California, please continue reading. If you believe that your employer has violated wage and overtime laws, we recommend contacting an employment attorney.
Consulting with a knowledgeable overtime attorney or wage and hour lawyer can help you understand your options and protect your rights. You may be able to file a complaint with the Labor Commissioner or file a wage and hour lawsuit against your employer for unpaid wages and attorney’s fees. It is essential to have a legal expert by your side, such as an FLSA attorney or overtime lawyer, who specializes in overtime laws and can guide you through the process. Additionally, you should also ensure that you are aware of what wage, hour, and overtime laws apply to you.
Receiving Proper Overtime Pay
Employers in California are required to pay certain employees proper overtime pay in accordance with both federal and state laws:
The Wage and Hour Division is a subdivision of the United States Department of Labor that enforces overtime provisions in the Federal Labor Standards Act (FLSA). According to the FLSA, unless exempt, all employees covered by the act are entitled to overtime pay if they work over 40 hours in a week.
The overtime pay received must be no less than time and one-half the employee’s regular rate of pay. For instance, if a worker receives $20 an hour and works 2 hours of overtime, the employee would be entitled to $30 for each overtime hour.
California State Laws
Similarly, California Labor Law 510 specifies that non-exempt employees are entitled to one and one-half times their regular rate of pay if they work over 40 hours a week. Additionally, this statute also provides employees the right to this amount of overtime pay if they work:
- Over 8 hours in one day
- Over 6 consecutive days in week
Employees must also be paid double time if they work over:
- 12 hours in a workday
- 8 hours on the seventh day of the workweek
Not all workers are entitled to overtime pay. Six common types of workers that are typically not entitled to overtime pay in California are:
- Exempt employees. According to Labor Code 515, in order to be considered an exempt employee, a worker typically must have a “white collar” job that consists of executive, administrative, and professional duties. Additionally, the employee must have a salary that is no less than twice the rate of California’s minimum wage for a full-time job.
- Outside salespersons. These workers are not entitled to OT if they are at least 18 years old, at least half of their work is completed outside of the place of business, and they sell contracts, services, items, or facility usage.
- Unionized employees under a collective bargaining agreement. According to Labor Code 514, collective bargaining agreements make certain workers ineligible for OT if the agreement already provides for work hours and wages, provides wage rates for OT hours, and provides a working wage that is 30% more than California’s minimum wage.
- Specified occupations with their own OT rules. Certain workers are not entitled to OT pay, such as camp counselors, live-in nannies and household workers, personal attendants, agricultural workers, and some of the employer’s relatives.
- Independent contractors. Workers who maintain control over how their work is produced and produce such work for a specified pay are not entitled to OT.
- Employees with an alternative workweek schedule. An alternative work schedule would involve a written agreement between a group of employees and their employer that the workers may work up to 10 hours a day without overtime pay.
Receiving Adequate Wages
The FLSA sets basic federal minimum wage standards. Current federal minimum wage is $7.25 per hour. Although the FLSA sets the federal minimum wage, it does not cover other wage issues such as severance pay. It merely ensures that every employer must abide by a general rule for the least amount of wages a worker must receive.
For workers who make more than $30 per month in tips, the minimum wage is $2.13. If the minimum wage standard is not properly observed, an employer could be liable for back pay of up to 2-3 years, depending on the circumstances of the case.
Unlike the requirement specified in the FLSA, California law mandates that all workers be paid wages of at least the amount of minimum wage, regardless of whether they received tips or gratuity. Labor Code 221 prohibits employers from withholding wages that have already been earned by the employee. This means that wages cannot be withheld to offset tips earned.
According to California Labor Code 1197, in 2023, the minimum wage in California is $15.50 an hour.
California Labor Code 204 mandates that employees pay their employees twice a month of paydays designated in advance. One exception to this requirement is with overtime pay, which must be paid by the second regular paycheck after the OT was worked. This gives the employer adequate time to pay for the extra hours that may not have been expected.
According to Labor Code 226, employers are required to provide itemized wage statements with each of these semi-monthly paychecks. These itemized statements should include gross and net wages, deductions, hourly rates, and hours worked. Employers must keep these statements for at least 3 years.
Wage and overtime violations occur when an employer fails or refuses to properly compensate a wage worker for time spent working. First and foremost speaking to an employment attorney is recommended. In the event that your employer has violated CA wage and overtime laws your attorney may present you with options. In these cases, there are generally two ways an employee can address the issue:
- File a complaint with the Labor Commissioner
- File a wage and hour lawsuit against the employer
The complaint forms often must be accompanied by additional documentation such as pay stubs and personal records of hours worked. The complaint may initiate an investigation and conclude with a determination by the Division based on the information presented and gathered.
In addition to filing a complaint, an employee may also file suit against an employer in a court of law. The purpose of a suit of this nature is to recover back pay or lost wages due to the employer’s violation of wage and overtime laws. When violations are found, employees are eligible to receive compensation for up to 2 years of back pay or 3 years if the violation was willful. It is important to remember that situations vary depending on specific circumstances.
California’s Labor Code 203 states that the penalty is measured at the employee's daily rate of pay and is calculated by multiplying the daily wage by the number of days that the employee was not paid, up to a maximum of 30 days. However, this does not mean that the wages continue for a 30-day period but that the employee may be entitled to up to 30 actual days' worth of wages. The 30-day period is calendar days and includes weekends, holidays, and any other days that the employee would not normally work. An employee who avoids payment to them or who refuses to receive the payment when fully tendered to them, including any penalty then accrued under this section, is not entitled to any benefit under this section for the time during which the employee so avoids payment.
On the other hand, payment of the wages or the commencement of an action regarding the late payment stops the penalty from accruing. Filing a complaint in court commences an action, but an employee filing a claim with the Division of Labor Standards Enforcement (DLSE) is not considered the filing of an action and does not stop the penalty from accruing.
Until recently, overtime rules for agricultural workers in California differed from those in other industries. But thanks to a law called AB1066, California now ensures agricultural workers equal right to overtime pay. California agricultural workers must receive time-and-a-half pay if a company with 26 or more workers employs them and if they work more than eight hours a day and 40 hours a week.
No, employees from the healthcare industry who are subject to a validly alternative workweek schedule are exempted from the general overtime pay. Employees from this industry, according to IWC Wage Order numbers 4 and 5, are still entitled to overtime. However, he or she is not subject to the normal daily overtime rules but rather is subject to special daily overtime rules. Moreover, they are not entitled to overtime compensation if the validly adopted alternative workweek schedule provides for work days exceeding 10 hours but not more than 12 hours within a 40-hour workweek. This means the alternative workweek schedule can be a 3-day per week and 12-hour per day schedule. If the employee works beyond 12 hours in a work day, they must be paid overtime at double the employee’s rate of pay for all hours in excess of 12. Meanwhile, an employee who works in excess of 40 hours in a workweek must be paid overtime at one and one-half times the employee's regular rate of pay for all hours worked over 40 in the workweek.
Yes, according to the California Waiting Time Penalty policy applies to employees regardless of whether they are part-time or full-time workers. This also applies regardless of their status— exempt or nonexempt— temporary, probationary, or otherwise. However, the penalty rule does not apply to independent contractors or volunteers, for they are not “employees.”
Don’t Let Wage and Overtime Issues Go Unaddressed
Don’t let wage and overtime issues go unaddressed. If you think your rights have been violated, contact Shegerian & Associates today. Our team of expert employment law specialists and wage and hour attorneys are ready to assist you with the expert legal assistance you need to bring your dispute to a successful close.