If you are a non-exempt employee in California, you can sue your employer for failing to pay you overtime wages that you have earned. You are entitled to overtime (OT) – which is 1.5 times your regular rate of pay – for working more than:
- 8 hours in a workday,
- 40 hours in a workweek, or
- 6 consecutive days in a workweek.
Meanwhile, you must get double your regular rate of pay for working more than:
- 12 hours in a workday or
- 8 hours on the seventh consecutive day in a workweek.
If you prevail in your lawsuit, you should recover all your unpaid overtime plus interest. In addition, you may be able to recover attorney’s fees and court costs.
Below, our California labor and employment law attorneys discuss the following topics re. lawsuits for unpaid overtime:
- 1. Non-Exempt Employees
- 2. Overtime Pay
- 3. Can I sue?
- 4. Is suing worth it?
- 5. Statute of Limitations
- 6. Damages
- 7. Can I be fired for suing?
- Additional Resources
1. Non-Exempt Employees
As a non-exempt worker in California, you must be paid overtime wages if you work overtime. It is against California labor law for an employer to fail to pay you for overtime work.1
Employees are generally classified as exempt or non-exempt. Non-exempt workers include “persons employed in professional, technical, clerical, mechanical, and similar occupations whether paid on a time, piece rate, commission, or other basis.”2
Exempt employees, who are not entitled to overtime pay, may include:
- White-collar workers,
- Independent contractors, or
- Employees earning commissions.3
In order to qualify as an exempt employee in California, you must meet the following requirements:
- Spend more than one-half of your work time performing intellectual, managerial or creative work;
- Customarily and regularly exercise discretion and independent judgment in performing those job duties; and
- Earn a monthly salary equivalent to at least twice the California minimum wage for full-time employment.4
Some employers may incorrectly classify you as exempt even though you are non-exempt in order to avoid paying overtime.
2. Overtime Pay
Under California overtime law, employers are required to pay non-exempt employees overtime for work over the maximum number of hours per day or per week.5
If you are a non-exempt employee and do not have an alternative workweek schedule, you are entitled to one-and-a-half times your regular rate of pay if you work:
- more than eight (8) hours in a single workday;
- more than forty (40) hours in a single workweek; or
- more than six (6) days in a single workweek.6
In addition, work in excess of twelve (12) hours in a single workday, or in excess of eight (8) hours on the seventh day of a workweek, is paid at double your regular hourly rate of pay.7
Even if your employer does not require overtime work, employers may owe you overtime pay as long as the employer permitted you to perform the extra work.8
No “Off-the-Clock” Work
Employers in California may not require you to work “off the clock” without compensation.9 “Off the clock” work may include:
- Pre-shift duties,
- Post-shift work,
- Administrative duties,
- Work performed during a meal break or rest break, or
- Having to take a lunch break while staying at the front desk.
Work done off the clock is compensated at your regular hourly wage. If any off-the-clock work is performed that puts you over the maximum number of work hours, you are eligible for overtime pay.
Example: Frank is a non-exempt employee who works eight hours a day five days a week. One day, when Frank is about to go home for the evening, Frank’s boss says he needs to stay to fix some documents. Since “off the clock” work is forbidden, Frank is owed overtime for whatever time he stays at work to fix the documents.
If you are owed OT, you can sue your employer for your back pay plus interest.
3. Can I sue?
If your employer failed to pay you overtime, you may be able to recover your unpaid wages by bringing a labor board complaint or filing a lawsuit against your employer.
Lawsuits against employers for California overtime violations may include:
- Failure to pay overtime compensation for work over 8 hours in a day,
- Failure to pay overtime compensation for work over 40 hours in a week,
- Failure to pay overtime compensation for working more than 6 days in a row,
- Requiring you to work off the clock,
- Requiring you to work during an unpaid lunch break,
- Misclassifying you as “exempt,” or
- Misclassifying you as an “independent contractor.”
Note that the following people acting on behalf of an employer can be held individually liable for wage and hour violations:
- owners,
- directors,
- officers, and
- managing agents.10
4. Is suing worth it?
You may think it is not worth filing a lawsuit if you are only owed a few hundred dollars. However, in overtime pay lawsuits, you are eligible to recover not only your unpaid overtime compensation but also interest and attorney’s fees.11
Plus, if your employer has underpaid other employees as well, you can band together and bring a wage and hour class action lawsuit.12
5. Statute of Limitations
In most cases, the statute of limitations for California wage and hour lawsuits is three (3) years from the date of the most recent violation. However, consult with an attorney as soon as possible in case a shorter statute of limitations applies to your particular case.13
6. Damages
The total amount of damages available in a lawsuit for unpaid overtime will depend on the specific situation. In a lawsuit for unpaid wages related to overtime pay, you may be able to collect:
- Amount of unpaid wages,
- Interest on the unpaid wages,
- Reasonable attorney’s fees, and
- Court costs.14
If your employer violated federal labor laws under the FLSA (Fair Labor Standards Act), you may also be able to collect liquidated damages equal to the amount of unpaid wages, or double damages.15
Under California labor laws, you may also be eligible for double damages if your employer’s overtime pay violation was not due to a good-faith error.16
7. Can I be fired for suing?
Employers cannot retaliate against you for exercising your rights under California labor laws.17 If an employer fires you for citing wage and hour violations or filing an unpaid wages lawsuit, you can sue them for “wrongful termination.”
Additional Resources
For more information on California overtime law, refer to the following:
- How to file a wage claim – Instructions provided by the California Labor Commissioner.
- Free overtime calculator – A program provided by Forbes that lets you input your salary and hours so you can estimate what your paycheck should be.
- An overview of overtime laws by state – A comparison provided by an employment software company.
- Fair Labor: A Brief History of Overtime in America – Audio story by The Takeaway.
- What California Employers Need to Know About Overtime for Employees – Information provided by the Poster Compliance Center.
Legal References:
- 8 California Code of Regulations (“C.C.R”) 11040. (“3. Hours and Days of Work (A) Daily Overtime – General Provisions (1) The following overtime provisions are applicable to employees 18 years of age or over and to employees 16 or 17 years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (1 ½) times such employee’s regular rate of pay for all hours worked over 40 hours in the workweek. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than: (a) One and one-half (1 ½) times the employee’s regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee’s regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek. (c) The overtime rate of compensation to be paid to a nonexempt full-time salaried employee shall be computed by using one-fortieth (1/40th) of the employee’s weekly salary as the employee’s regular hourly rate of pay.”);
Yuki Noguchi, 1.3 Million More Workers Eligible For Overtime Pay, But Some Say Rules Fall Short, NPR (September 24, 2019)(“Current federal law says most workers making about $23,660 a year are entitled to overtime pay. In other words, in order to be considered “salaried,” most workers need to make at least that. Starting Jan. 1 [2020], that minimum salary threshold will be raised to $35,568.”) - Labor Code 515 LC — Exemptions from overtime law. (“(a) The Industrial Welfare Commission may establish exemptions from the requirement that an overtime rate of compensation be paid pursuant to Sections 510 and 511 for executive, administrative, and professional employees, if the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. The commission shall conduct a review of the duties that meet the test of the exemption. The commission may, based upon this review, convene a public hearing to adopt or modify regulations at that hearing pertaining to duties that meet the test of the exemption without convening wage boards [See also California Labor Code 1179.]. Any hearing conducted pursuant to this subdivision shall be concluded not later than July 1, 2000.”)
- 8 C.C.R 11040 (“1. Applicability of Order This order shall apply to all persons employed in professional, technical, clerical, mechanical, and similar occupations whether paid on a time, piece rate, commission, or other basis, except that: (A) Provisions of sections 3 through 12 shall not apply to persons employed in administrative, executive, or professional capacities.”)
- Labor Code 515 LC, endnote 2 above.
- Labor Code 510 LC — Day’s work; overtime; commuting time. (“(a) Eight hours of labor constitutes a day’s work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee. Nothing in this section requires an employer to combine more than one rate of overtime compensation in order to calculate the amount to be paid to an employee for any hour of overtime work. The requirements of this section do not apply to the payment of overtime compensation to an employee working pursuant to any of the following: (1) An alternative workweek schedule adopted pursuant to Section 511. (2) An alternative workweek schedule adopted pursuant to a collective bargaining agreement pursuant to Section 514. (3) An alternative workweek schedule to which this chapter is inapplicable pursuant to Section 554.”)
- Same.
- Same.
- Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 584–85. (“Along with other amici curiae, the California Labor Commissioner notes that “the time the employee is suffered or permitted to work, whether or not required to do so” can be interpreted as time an employee is working but is not subject to an employer’s control. This time can include work such as unauthorized overtime, which the employer has not requested or required. “Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift…. The employer knows or has reason to believe that he is continuing to work and the time is working time.” (29 C.F.R. § 785.11 (1998).) “In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed.” (29 C.F.R. § 785.13 (1998).) “)
- Adoma v. University of Phoenix, Inc. (E.D. Cal. 2010) 270 F.R.D. 543, 548.
- Labor Code 1194 LC — Action to recover minimum wage, overtime compensation, interest, attorney’s fees, and costs by employee. (“(a) Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit. (b) The amendments made to this section by Chapter 825 of the Statutes of 1991 shall apply only to civil actions commenced on or after January 1, 1992.”). Labor Code 558.1 LC. See, for example, Huerta v. CSI Electrical Contractors (Cal. 2024) .
- Same.
- See also 29 U.S.C. 216(b) — Damages; right of action; attorney’s fees and costs; termination of right of action. (“Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.”)
- Code of Civil Procedure 338 CCP — Statutes of limitations for wage/hour lawsuits. (“Within three years: (a) An action upon a liability created by statute, other than a penalty or forfeiture.”)
- Labor Code 1194 LC, endnote 10 above.
- 29 U.S.C. 216(b), endnote 12 above.
- Labor Code 1194.2 — Liquidated damages in wage/hour suits. (“(a) In any action under Section 98, 1193.6, 1194, or 1197.1 to recover wages because of the payment of a wage less than the minimum wage fixed by an order of the commission or by statute, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon. Nothing in this subdivision shall be construed to authorize the recovery of liquidated damages for failure to pay overtime compensation. A suit may be filed for liquidated damages at any time before the expiration of the statute of limitations on an action for wages from which the liquidated damages arise. (b) Notwithstanding subdivision (a), if the employer demonstrates to the satisfaction of the court or the Labor Commissioner that the act or omission giving rise to the action was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of any provision of the Labor Code relating to minimum wage, or an order of the commission, the court or the Labor Commissioner may, as a matter of discretion, refuse to award liquidated damages or award any amount of liquidated damages not exceeding the amount specified in subdivision (a). (c) This section applies only to civil actions commenced on or after January 1, 1992.”)
- Labor Code 98.6 LC — Discharge or discrimination, retaliation, or adverse action against employee or applicant for conduct delineated in this chapter or because employee or applicant has filed complaint or claim, instituted or caused to be instituted any proceeding under or relating to his or her rights or testified relating to the same on behalf of that person or another whistleblower protection for reporting wage/hour or labor law violations.