OVERTIME PAY

What is the overtime law in California and across the country?
Overtime is defined under California law, for most job positions, as any work done:
  • beyond 8 hours in one workday
  • beyond 40 hours in one workweek
  • in the first 8 hours on the seventh day within any one workweek
Overtime work is compensable to nonexempt employees at a rate not less than one and one-half times (i.e., “time and a half”) the regular rate of pay. Overtime work performed in excess of 12 hours in any workday, or in excess of eight hours on any seventh day of work in a workweek, is compensable at a “double time” rate. As a rule, state laws (like California’s laws) can be more generous than federal law, but cannot provide less protection for workers.

Unlike California law, federal law does not include an eight hour workday overtime rule, just a 40 hour workweek provision. What the overtime law may be in a particular state outside of California will largely depend on whether that state maintains overtime laws more protective than the federal standard.

Overtime pay is due on the regularly-scheduled paydays after which the employee earned it. For example, if an employer pays regular wages every Friday then, every Friday, the overtime pay which the employee earned in the same workweek is also due and payable. Employers may start a workweek on any hour of any day in the calendar week, but must then stick to that time and day for calculating overtime hours worked and the overtime pay due. Moreover, Employers may pay eligible employees by some other method than hourly, such as by “piecework,” but may, in many cases, still owe overtime pay based on the hours eligible employees worked in each workweek.

Why do overtime laws exist?
Overtime laws were created as a method of penalizing employers who worked laborers beyond particular time limitations, an incentive that served to:

  • promote fuller employment
  • reduce rates of accident and injury
  • protect family cohesion by allowing parents to spend more time with their families (versus being at work)
It is an interesting historical note that these reasons are what compelled, at the federal level, Congress to respond to the failing national economy in the wake of The Great Depression by enacting the Fair Labor Standards Act in 1938.

I work in California. Can my employer force me to work overtime hours?
While some jobs in California (e.g., underground miners, smelter workers) fall under specific prohibitions against working overtime hours, people in most job positions can be compelled to work overtime hours, but they must be paid for it. Certain workers governed by Industrial Welfare Commission (IWC) Wage Orders such as Nos. 8, 13 and 16 can refuse to work more than 72 hours in a workweek.

What are IWC Wage Orders?
California Wage Orders are what govern the wages, hours and working conditions of persons employed in specific industries and/or holding specific occupations. An Order is an “industry” Order if its title contains the word “industry.” Otherwise, it is an “occupational” Order.

In order to determine which IWC Order applies to an employee or business, it is first necessary to determine if a business is covered by an industry Order. An industry Order (i.e., Order Nos. 1-3 and 5-13) regulates wages, hours and working conditions in specific industries. The remaining Orders (i.e., Order Nos. 4 and 14-17) only apply when a business is not covered by an industry Order.

A few examples (courtesy of the Department of Labor Standards Enforcement) of how a particular job position can fall under different Orders, depending on the nature of the business that employs it, can be found by clicking here. Moreover, it is largely these Wage Orders that dictate whether particular jobs are entitled to overtime pay and meal and rest breaks.

Can I waive my right to overtime pay?
Many people mistakenly believe that agreeing to a flat salary, piece-rate or commission-based pay structure means they have waived their right to overtime pay; overtime pay entitlement simply cannot be waived. Therefore, while written agreements between employees (or unions) and employers are allowed to include or expand the minimum protections afforded by Federal overtime law, such agreements may not waive employee rights under the FLSA.

Do I have to have a written record of the amount of overtime I worked?
No. In fact, in our experience, very few salaried workers keep track of their overtime hours, and why would they? Their employers have convinced them that they were properly classified and, until recently, what reason was there for these workers to question it?

According to California and federal law, the employer has the burden of maintaining and providing written time records. If the employer has not kept these records, you are allowed to provide an estimate of the amount of overtime you have worked, and you can do that on a daily, weekly, or any other basis. As in any type of dispute, however, written evidence (e.g., time slips, journal or calendar entries, notes, computer or register time logs) is always helpful, so save whatever documentation you have if you are considering an action to recover your overtime pay, but don’t let the lack of such records give you reason for concern.

How can I enforce my rights to overtime pay?
California’s overtime law can be enforced through a civil action, by contacting at attorney or by contacting the Office of the Labor Commissioner and filing a claim. Federal overtime law is enforced under the Fair Labor Standards Act of 1938 (FLSA). by the U.S. Department of Labor, Wage and Hour Division, for employees of private-sector businesses. The Wage and Hour Division also enforces FLSA overtime law for employees of state and local governments, and Federal employees of the Library of Congress, U.S. Postal Service, Postal Rate Commission, and the Tennessee Valley Authority. The U.S. Office of Personnel Management enforces it for other Federal employees. The U.S. Congress enforces it for congressional employees.

Can my employer retaliate against my rights to overtime pay?
Absolutely not. Both the FLSA and California law have extremely strong prohibitions against any form of retaliation and employers know this. Employers also know that, if they retaliate against their workers for enforcing their rights to overtime pay, significant damages and penalties can be assessed against them. In short, while some workers fear retaliation by their employers for pursuing wage claims, retaliation simply makes no financial or other logical sense to an employer.

What if I don’t work in California?
To look up your state's overtime laws, the following links may be helpful. For more information or to report employer violations, start by contacting the federal or your work state's department of labor.

Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas

 

Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina

 

North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming

Are salaried employees entitled to overtime pay?
Overtime pay is a right defined by the law, not by your employer. While employers cannot simply label employees as “exempt” to evade the law, countless companies do by denying employees overtime pay on the false basis that these people are exempt executives (i.e., managers), administrators, professionals, or the like, although they do not meet (or perhaps even know) the legal test for these exemptions. This reality has unquestionably led to one of the biggest “cover-ups” in business history and to the filing of thousands of lawsuits over the past decade alone to stop these unlawful practices. If you haven’t heard about this, don’t be surprised; you will.

Is misclassification a common occurrence?
Misclassifying employees, based upon corporate greed, ignorance or “tradition” happens all the time. Since overtime laws have been around in this nation since the time of The Great Depression, no employer can legitimately claim ignorance of their existence. For more information about overtime exemptions, click here.

These questions and answers are for educational purposes only and cover just a few topics that are commonly of interest to workers. This material should not be construed as legal advice, the establishment of an attorney-client relationship, or as indicative of a particular outcome regarding any legal issue you might have.