Overtime laws were created as a method of penalizing employers who worked laborers beyond particular time limitations, an incentive that served to:
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.
- 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)
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.
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.
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.
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.
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.
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.
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.
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.
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.