Under California law, non-exempt employees are entitled to overtime pay if they 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. Employers must pay time and a half for work in excess of these hours.
In addition, double-time pay is required for hours worked
- in excess of twelve (12) total hours in a single workday, or
- in excess of eight (8) hours on the seventh consecutive day of work. 1 2
California employers owe employees overtime pay for unauthorized time that the employer did not request or require--as long as the employer permitted the employee to perform the extra work.3
Every California employee--but not independent contractors--is entitled to overtime pay unless:
- S/he is an exempt employee under wage and hour law (which exempts him/her from overtime and rest/meal break rules);4 or
- S/he works under an “alternative workweek schedule.”5
Below, our California employment attorneys answer the following frequently asked questions:
- 1. To which workers do California overtime laws apply?
- 2. How many hours do I have to work to get overtime?
- 3. What if the company did not authorize it?
- 4. How do I collect on unpaid overtime?
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.
California overtime rules apply to all California employees unless they are
- an independent contractor rather than an employee,
- an exempt employee under California wage and hour law, or
- subject to an alternative workweek schedule.
Independent contractors do not enjoy the same protections under California labor law as employees, and this includes the right to overtime pay.
The legal definition of an independent contractor is someone who
- performs a service under an agreement that says s/he will produce a specified result for specified pay, and
- maintains control over the means by which the result is accomplished.6
Independent contractors are more common than ever under the gig economy. One current example involving possible misclassification of employee status as independent contractors is Uber and its rideshare drivers.
Exempt employees are those to whom California overtime laws--as well as other wage and hour laws such as laws requiring meal and rest breaks--do not apply. The largest class of exempt employees in California is those to whom the “white-collar exemption” applies.
White-collar exempt employees must meet all of the following requirements in order for overtime rules not to apply to them:
- Be primarily engaged in executive, administrative or professional duties (this generally means that 50% or more of his/her work time must be devoted to such tasks);
- Regularly and customarily exercise discretion and independent judgment at work; and
- Earn a salary equivalent to at least twice the state minimum wage for full-time (40 hours/week) work (as of January 2020 this is $49,920 per year for small business owner).7
Example: Maria is the manager of a bookstore. She has the authority to hire and fire employees and to make purchasing decisions, and she spends all of her time on management and administration.
Maria is paid an annual salary of $39,000. Because this amount falls below the minimum threshold for the white-collar overtime exemption, the bookstore’s owners owe her overtime every time she works more than 8 hours a day or 40 hours in a week.
Alternative workweek schedule
Finally, the normal California laws for overtime do not apply to workers whose employer has instituted an “alternative workweek schedule.”
An alternative workweek schedule is basically an agreement between a group of employees and their employer that the employees may work up to ten (10) hours a day without overtime pay.8
In order to be a valid exception to California overtime rules, an alternative workweek schedule must be approved by at least two-thirds of affected employees in a work unit, by secret ballot. Employees are still owed overtime if they work more than the number of hours authorized by the alternative workweek schedule, or if they work more than forty (40) hours in a single workweek.9
Alternative workweek schedules for unionized employees established under a collective bargaining agreement can also create an exception to the standard overtime rules.10
Under California law, employees who are not exempt and are not part of an alternative workweek schedule earn overtime if they work more than
- an 8-hour workday,
- a 40-hour workweek, or
- six (6) days in a single workweek.11
The overtime rate of pay generally consists of “time and a half.” That is, the overtime calculations are one and one-half times the worker’s regular rate of pay.
However, double-time pay--at twice the employee’s regular hourly wage rate--is required for
- any work in excess of twelve (12) hours in a single workday, and
- any work in excess of eight (8) hours on the seventh consecutive workday.12
Example: Alexa has full-time employment as a paralegal at a law firm. She is paid a salary equivalent to an hourly rate of $25 and is not exempt from California overtime law.
Alexa helps the lawyers at her firm with a large civil case that goes to trial. The trial lasts for a full week. During that time, not including lunch breaks, Alexa gives 14 hours of work every day from the Saturday before the trial to Friday (so a 7-day workweek, 98 hours total of job duties).
In addition to her regular pay, Alexa is entitled to time and a half overtime wages of $37.50 per hour for 24 work hours (the ninth through twelfth hours that she worked for the first six days of the workweek).
Alexa is also entitled to double time pay rate of $50 per hour for 26 hours (the thirteenth and fourteenth hours that she worked on each of the first six days of the workweek, plus all 14 extra hours that she worked on the seventh day of the workweek).
California courts have stated that unauthorized overtime is still overtime work under California wage and hour law. That is, even if your employer does not specifically request that you work more or give you advance approval to work more, s/he still owes you extra pay under state law.13
However, you are only entitled to extra pay for unauthorized overtime if your employer “suffers or permits” you to work overtime. This generally means that California employers must know or have reason to know that you were working overtime hours or working off the clock.14
It is also important to note that many employers have policies forbidding employees from working unauthorized extra hours. Your employer may discipline or even terminate you for violating such a policy--even though s/he is still obligated to pay you for the unauthorized hours.
California employment law provides employees with the right to bring a wage/hour lawsuit against their employer for failing to pay as required by California overtime law.
In a successful overtime lawsuit for unpaid wages, you could collect
- the unpaid balance of the overtime compensation that your employer withheld from you;
- interest on that amount; and
- reasonable attorney’s fees and litigation costs.15
In many cases, California workers who have been wrongly denied earned wages by their employers are not alone. If your employer has systematically failed to pay or required “work off the clock” from you and other employees, then you may be able to join a class action lawsuit brought by a reputable California employment lawyer.
Call us for help…
For questions about calculating overtime or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group. We offer free consultations and legal advice.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities in the state of California.
- California Labor Code section 510 — Day’s work; commuting time. Also see federal regulations for wage laws under the Fair Labor Standards Act (FLSA) and U.S. Department of Labor.
- Same. Note that discretionary bonuses are not counted as over-time pay.
- 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 over-time, 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. [Citations.]” (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).) “)
- Labor Code 515
- Labor Code 511
- Labor Code 3353 — Independent contractor status. Employees are often misclassified as independent contractors. Independent contractors usually use their own tools. And under the California Supreme Court, workers need to meet all three prongs of the ABC test (which replaces the Borello test) to be an independent contractor. Independent contractors do not get workers’ compensation insurance. And employers do not withhold social security on their paychecks or are liable to them for unemployment insurance and disability insurance. See Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County, No. S222732 (Cal. Sup. Ct. Apr. 30, 2018).
- Labor Code 515 — Exemptions. Also see the Industrial Welfare Commission (IWC) wage orders and Department of Industrial Relations. Exempt employees need to meet a duties test. Some employee exemptions include the professional exemption for professional employees, the administrative exemption for administrative employees, and the executive exemption. Computer professionals who work on computer software, computer hardware, software engineering, and computer systems analysis may also be exempt.
- Labor Code 511 — Alternative workweek schedules
- Labor Code 510 — Day’s work; commuting time, endnote 1 above.
- Same. Also see the Division of Labor Standards Enforcement (DLSE).
- Morillion v. Royal Packing Co., endnote 3 above.
- Labor Code 1194