An employment-law litigator with over 20 years’ experience, Steven Tindall is well-acquainted with navigating the ins-and-outs of California overtime law. His largest recovery in a single employment case is $29 million.
Under California overtime law, workers are entitled to earn 1.5 times their regular wage when they work more than 8 hours a day, unless they fall into one of the California overtime exemptions. Once they hit 12 hours a day, workers are entitled to earn double time, which is 2 times their regular rate of pay. A good employment lawyer will tell you it doesn’t matter whether you’re paid by the hour or piece-rate (per job), the California labor code requires employers to pay overtime to all non-exempt employees.
Below we discuss 7 common overtime issues and 4 common myths about overtime under California law.
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Definition of Overtime Pay: California
California protects employees from having to work too many hours in a day, or too many days in a week, without fair compensation. For this reason, California defines overtime based not only on hours worked per day, but also per week. The overtime period in California begins when an employee works 8 hours per day or 40 hours per week. Employees who have to work 7 days per week are also entitled to overtime on Sundays.
Once the overtime period begins, employers have to pay their workers one and a half times their normal rate.
The way California defines it, the overtime period ramps up at certain points, requiring an even higher level of compensation. Once an employee works past 12 hours in a day, the rate of overtime pay enters double time, where employees earn twice their normal rates. Employees are also entitled to double time in California if they work more than 8 hours on a Sunday, after a 7-day work week.
Summary of California Rules for Overtime (2020)
|How much did you work?||How much are you owed in California?|
|More than 8 hours in a day||Time-and-a-half (1.5x normal rate of pay)|
|More than 12 hours in a day||Double time (2x normal rate of pay)|
|More than 40 hours in a week||Time-and-a-half (1.5x normal rate of pay)|
|7 days in a week||-Time-and-a-half (on Sunday)
-Double time (over 8 hours on Sunday)
The Best Lawyer to Help You Recover Overtime Pay
When figuring out the best lawyer to represent you on your California overtime claims, consider whether the attorney specializes in California or federal labor law. Generally, California overtime law is more favorable to employees than federal overtime law. A good California employment lawyer will understand the intricacies and relative advantages of pursuing a claim under California law vs. federal.
Common Overtime Law Issues in California
Mandatory Overtime: Employers sometimes force employees to work past 8 hours a day or more than 40 a week, but don’t pay overtime rates. Depending on circumstances, it may be illegal for an employer to require an employee to work mandatory overtime.
Overtime Pay Waivers: An employee’s right to collect overtime pay cannot be waived. An overtime pay waiver in an employment contract is invalid under California law. An employment contract also cannot waive the CA overtime rates (time-and-a-half and double time), even if the employment agreement specifies that overtime will be at a particular (lower) rate.
Commute Time: Employers are generally not required to pay for time employees spend as part of an ordinary commute. For workers without a fixed job site, such as merchandisers who travel store-to-store, California law generally treats the first and last drive of the day as commute time. But drives in between job sites generally count as paid time.
Travel Time: Unlike commute time, time spent traveling for work must be compensated in California. Whether it’s air travel to meet a client, taking public transport to go pull public records, or drive time between job sites, employers must treat those hours as paid time. As a result, travel time counts towards calculating overtime hours and guaranteed hourly minimum wage.
California employees are generally entitled to overtime pay for business travel
Salaried Employees Exempt from Overtime: Certain categories of salaried employees are exempt from the protections of California’s overtime law. White collar workers who are employed in an administrative, executive, computer professional, or other professional capacity may be considered exempt employees under California law.
Unionized Workers: Employees that are unionized are an exception to the general rule in California that workers get time-and-a-half and double pay. California allows unionized workers to agree to a different overtime rate in a collective bargaining agreement, as long as the worker earns a wage premium for overtime hours that is at least 30% of California minimum wage. Based on California’s 2020 minimum wage, union workers must earn a premium wage of at least $3.90 an hour for overtime work.
Regular Rate of Pay: Some employees don’t have a single specified hourly rate, so they question what base rate to use when calculating overtime. For example, some employees receive a different wage rate based on the type of work (such as minimum wage for travel time and a higher wage rate for regular work hours), and some employees are paid piece-rate, meaning they receive a specified amount per job completed. California requires employers to calculate overtime pay based on the employee’s regular rate of pay. Generally, the regular rate of pay can be calculated by dividing the total amount of money the employee earns per week by the total hours the employee works in a regular week.
Common Overtime Myths Among California Employees
Myth #1: Unauthorized Overtime Is Not Compensable. Sometimes, an employee feels like they must work extra hours to finish all the work that their employer has assigned. They think: there’s just not enough hours in a day! Often, they don’t even report the hours on their time sheet. But when the employee quits or is fired, they want to know whether they can sue to recover overtime pay, even though the employer did not specifically authorize those hours. The general rule in California is that employers must pay for unauthorized overtime hours if the employer knew that the employee was working overtime, or if the employer should have known the employee would need to work overtime to finish the job.
Myth #2: Rest Breaks Are Not Included When Calculating Overtime. Employees in California are entitled to paid rest breaks every 4 hours. When calculating overtime hours, California employers are required to include rest breaks towards the total hours worked.
Myth #3: Piece-Rate Workers Not Entitled to Overtime Pay. Some piece-rate workers think they are not entitled to overtime because they are paid on a per-job basis. Service technicians and construction workers are often paid piece-rate. But piece-rate workers in California are entitled to earn a guaranteed minimum wage and overtime rates when calculating the total paid per job by the total hours worked on a particular job.
Myth #4: Compensation Is Never Required for On-Call Time. Generally, on-call pay is a requirement in California if the employee faces significant restraints on what they can do with their personal time while on-call. For example, if the employee must stay at their place of employment while on-call, California typically requires this be paid time, including counting it towards overtime hours.
Common Ways that Employers Deny Overtime Pay in California
Required Clocking Out: Employers will sometimes instruct their employees to clock out for mandatory rest breaks, or to clock out at the end of the day but continue working (such as cleaning up). In California, it is illegal to require non-exempt employees to perform off-the-clock work without pay.
Requiring Employees Come In Early: Employers will often instruct their employees to come in 15 minutes early, before their shift starts. This time must be compensated for non-exempt employees. Official work start time under California law is whenever the employee becomes subject to the employer’s control. Waiting time, where employees are required to be there but aren’t working, is generally considered paid time in California.
Substantial Prep Time: If the job requires the employee to perform a substantial amount of preparatory work, such dressing in specialized gear as or getting their workstation ready, California employers must generally compensate this time, including counting it towards overtime hours.
Training Time: If attendance at training sessions is mandatory, employers are required to pay employees for these hours, including adding them to calculation of overtime hours. Some employers try to pretend that certain training sessions are voluntary, but California law treats training as mandatory if employees are led to believe that non-attendance will negatively affect their job.
Mandatory Meetings: If attendance at a meeting is mandatory, employers in California are required to count these meetings as paid time, including towards overtime hours, even if the meeting occurs outside of normal work hours.
Recent California Overtime Lawsuits
Revel Systems: Revel Systems, a technology company employer, was accused of shorting its workers anywhere from $250 to over $53,000 each in overtime compensation. The filing cited alleged violations of the Fair Labor Standards Act (FLSA), as nearly 150 of Revel’s internal sales representatives claimed that they regularly worked overtime but did not receive proper compensation. The class action lawsuit reached a preliminary settlement of $2.75 million in 2019.
McDonald’s: In 2019, McDonald’s agreed to pay $26 million to settle a 6-year old lawsuit alleging that the company structured shifts in a way which denied employees proper overtime pay. As part of the settlement, McDonald’s added that it will continue to “roll out additional trainings and resources across corporate-owned restaurants to promote continued compliance with all wage and hour laws.”
Comcast: 4,500 technicians and workers lodged a complaint against Comcast Corp. and O.C. Communications Inc. (OCC) in 2017, alleging that the companies denied workers meal breaks, and failed to pay them for overtime work. The lawsuit reached a $7.5 million settlement in 2019.
Learn More about California Labor Law
Featured Members of Our Employment Law Practice
Prior to joining us at Gibbs Law Group LLP, Linda Lam worked at a national employment law firm, where she represented workers in lawsuits to recover unpaid wages and benefits.
Steve has prosecuted a variety of complex employment cases involving misclassification of independent contractors. He is fluent in English and Spanish.
Our California employment attorneys – with over 50 years of collective experience litigating under California employment law – know how to fight for employees’ rights and get them the money they deserve.
We’ve recovered tens of millions of dollars for California employees and represent individuals as well as class actions in virtually every area of California employment and labor laws: California overtime law, off the clock violations in CA, breach of contract disputes, California independent contractor law, sexual harassment, employee misclassification, discrimination, as well as mass layoffs in violation of the California WARN Act.
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Gibbs Law Group is a California-based law firm committed to protecting the rights of clients nationwide who have been harmed by corporate misconduct. We represent individuals, whistleblowers, employees, and small businesses across the U.S. against the world’s largest corporations. Our award-winning lawyers have achieved landmark recoveries and over a billion dollars for our clients in high-stakes class action and individual cases involving consumer protection, data breach, digital privacy, and federal and California employment lawsuits. Our attorneys have received numerous honors for their work, including “Top Plaintiff Lawyers in California,” “Top Class Action Attorneys Under 40,” “Consumer Protection MVP,” “Best Lawyers in America,” and “Top Cybersecurity/ Privacy Attorneys Under 40.”
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