- more than 8 hours in a workday,
- more than 40 hours in a workweek, or
- more than 6 consecutive days in a workweek.
Employers also must pay double-time for non-exempt employees working more than:
- 12 hours in a workday, or
- 8 hours on the seventh consecutive day in a workweek.
California Labor Code 510 states that:
“(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.”
Workers who are denied mandatory overtime pay may file a complaint with Labor Commissioner. Alternatively, workers may file a wage and hour lawsuit against their employer for unpaid wages and attorney’s fees.
In this article, our California labor and employment law attorneys discuss:
- 1. Can everyone get higher wages for working extra hours?
- 2. When do California mandatory overtime rules apply?
- 3. How much is overtime pay in California?
- 4. How soon do I receive overtime pay?
- 5. What if my employer refuses to pay me overtime?
- 6. Can I be paid overtime if my employer did not authorize it first?
- 7. Can my employer require me to work extra hours?
- 8. Can my employer require me to take comp time pay instead of overtime?
- 9. What is my regular rate of pay?
1. Can everyone get higher wages for working extra hours?
No. Six common types of workers not entitled to overtime (OT) pay are:
- Exempt employees;
- Outside salespersons;
- Unionized employees under a collective bargaining agreement;
- Specified occupations with their own OT rules;
- Independent contractors; and
- Employees with an “alternative workweek schedule“
Each of these professional exemptions is discussed below. Otherwise, the only people entitled to receive higher wages for working extra hours are
- non-exempt employees
- who are 18 years old (or who are 16 or 17 years old and are legally allowed to work instead of going to school).1
1.1. Exempt employees
In order to be considered an exempt employee, workers typically must both:
- have a “white collar” job, which consists of administrative, professional, or executive duties that require the worker to exercise independent judgment and discretion; and
- receive a fixed salary instead of an hourly wage, and this salary must be no less than twice California’s minimum wage for a full-time job (40 hours/week). For 2021, the minimum exempt salary for businesses with 25 or fewer employees is $58,240 per year (or $1,040 per week). For businesses with 26 or more employees, the minimum exempt salary is $62,400 per year (or $1,120 per week). 2
Example: A professional employee, Maria is the manager of a small 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 $58,240 minimum threshold for the white-collar overtime exemption, the bookstore’s owners owe her overtime pay every time she works extra hours.
Note that exempt employers who work on an hourly basis must still get paid for every extra hour they work. But unless their employment agreement says otherwise, their overtime pay is no higher than their regular pay.
1.2. Outside salespersons
Outside salespeople are not entitled to overtime pay in California if they meet the following three conditions:
- They are at least 18 years old;
- At least half of their work time is spent away from their employer’s place of business; and
- They sell contracts, services, items, or facility usage 3
1.3. Unionized employees under a collective bargaining agreement
Unionized employees are not entitled to overtime pay in California if their collective bargaining agreement provides for:
- work hours, work conditions, and wages; and
- a regular hourly wage that is 30% or more than California’s minimum wage; and
- wage rates for overtime hours
If the collective bargaining agreement does not meet these three conditions, then unionized employees are considered “non-exempt” and may receive overtime pay in accordance with California wage and hour laws. 4
1.4. Specified occupations with their own OT rules;
People with certain occupations are not entitled to overtime pay in California. Common ones include:
- Camp counselors
- Old age home managers
- Agricultural workers
- Certain 24-hour nannies
- Live-in household workers
- Personal attendants
- The employer’s husband or wife, parents, or children 5
1.5. Independent contractors
Independent contractors are not entitled to overtime pay in California. The legal definition of an independent contractor is someone who:
- performs a service under an employment contract that says he or she 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 in the gig economy. See our related article on independent contractor misclassification.
1.6. Employees with an “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 a written agreement between a group of employees and their employer that the employees may work up to ten (10) hours a day without overtime pay.
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. (The employer must report the alternative workweek schedule to the Division of Labor Standards Enforcement within 30 days.)
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.
Note that employers may not retaliate against employers for their opinions concerning having an alternative workweek. 7
2. When do California mandatory overtime rules apply?
- An 8-hour workday (or a 10-hour workday in a four-day “alternative workweek”, or a 12-hour day in a three-day “alternative workweek”); or
- A 40-hour workweek; or
- Six (6) consecutive days in a workweek 8
Each of these overtime requirements is discussed below. Note that workers cannot waive their right to overtime pay.
2.1. More than 8 hours in a workday
Non-exempt employees are generally entitled to overtime pay if they work more than eight hours in a single workday. Alternatively, non-exempt employees are generally entitled to overtime pay if they work more than 10 hours in a single workday on an alternative workweek schedule. (As discussed above in section 1.6, alternative workweeks generally include four workdays of 10 hours each.)
Unless the employer says otherwise, a workday goes from 12:01 A.M. to midnight. Note that employees who work more than eight hours on a single calendar day may still be ineligible for overtime if those hours are spread over two different workdays.
Example: Jack’s employer scheduled Jack’s workday from 4:00 P.M. to 3:59 P.M. Jack works from 12:00 PM to 10:00 PM. Even though Jack works ten hours in a row in one calendar day, the first four hours fall on one workday (from 12:00 P.M. to 3:59 P.M.), and the final six hours work on another workday (4:00 P.M. to 9:00 P.M.). Therefore, Jack’s day’s work does not trigger overtime pay.
Note that employers cannot change workday start- and end-times unless there is a legitimate business reason. Also note that employees are still entitled to overtime pay for working more than eight hours on a particular workday even if they usually work eight or fewer hours a day on average. 9
Also note that people who normally work fewer than eight hours a day are not entitled to overtime pay if they work the full eight hours. They would get their normal wage up until eight hours are worked.
2.2. More than 40 hours in a workweek
Non-exempt employees are generally entitled to overtime pay if they work more than 40 hours in a single workweek.
Working more than 40 hours within a week-long period does not automatically entitle employees to overtime if those 40 hours span two separate workweeks:
Example: Moe’s workweek starts on Monday and ends on Sunday. Moe works eight hours a day on Wednesday, Thursday, Friday, Saturday, Sunday, and Monday:
Even though Moe worked 48 hours in a week-long period, 40 of those hours spanned just one workweek, and the other eight hours were in a totally different workweek. Therefore, Moe is not entitled to overtime based on working more than 40 hours in a week-long period.
Also note that an employee’s daily overtime hours do not count towards their weekly overtime hours. This means that an employee must work at least 40 hours at a regular hourly rate (straight time pay) before he/she can receive overtime for working more than 40 hours in a workweek, even if the employee is already receiving overtime pay for working more than eight hours on a workday. This rule keeps employees from pyramiding, which is the practice of receiving double-credit for their hours worked. 10
Also note that people who normally work fewer than forty hours a week are not entitled to overtime pay if they work the full forty hours. They would get their normal wage up until forty hours are worked.
(See our related article on How many hours can I legally work in a day?)
2.3. More than 6 consecutive days in a workweek
Non-exempt employees are generally entitled to overtime pay for a seventh consecutive day of work in a workweek.
As with workdays, employers get to decide when their workweek starts. Therefore, working seven days in a row does not automatically entitle employees to overtime if those seven days span two separate workweeks:
Example: Moe’s workweek starts on Monday and ends on Sunday. At one point Moe works eight-hour days on Wednesday, Thursday, Friday, Saturday, Sunday, Monday, and Tuesday:
Even though Moe worked seven days in a row, the final Monday and Tuesday fell on a different workweek than the previous five days. Therefore, Moe is not entitled to overtime pay based purely on working seven days in a row.
Note that employers may have different workweeks for different workers. Employers cannot change workweeks to try to get around obligations to pay employees overtime. 11
3. How much is overtime pay in California?
California’s 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, employers must pay double-time wages – twice the employee’s regular hourly wage rate – when employees work either:
- more than twelve (12) hours in a single workday, or
- more than eight (8) hours on the seventh consecutive workday. 12
The following chart summarizes when employers must pay their workers one-and-a-half times or double times the regular rate of pay:
Overtime pay in California
Work qualifying for overtime pay
(1.5 times the regular rate of pay)
(2 times the regular rate of pay)
Note that hours worked include not only time spent working but also the following:
- meal breaks only if the employee is asked to – or allowed to – work during the break;
- rest breaks (which are usually 10 minutes for every four hours worked); 13
- “on call” periods unless the employee is free to participate in personal activities and has sufficient time to go to work when called on; 14
- job preparation time if the prep is integral and indispensable to the job;15
- commuting if it is mandatory to travel on employer-provided transportation, or if the employee must travel to a job site that is far from his/her office16
3.1. Examples for calculating overtime pay
For the following five examples, Bill’s workweek is Monday through Sunday, and Bill’s workday is from 12:01 A.M. to midnight.
1) One week, Bill’s work schedule is five hours a day from Monday through Saturday, except on Tuesday he works nine hours. Employees are entitled to one-and-a-half overtime pay for working more than eight hours up to 12 hours in a workday. Since Bill worked nine hours on Tuesday, he should get eight hours of regular pay plus one hour of 1.5x overtime pay:
2) One week, Bill works five hours a day from Monday through Saturday, except on Tuesday he works 13 hours. Employees are entitled to one-and-a-half overtime pay for working more than eight hours up to 12 hours in a workday. And employees are entitled to double overtime pay for working more than 12 hours in a workday. Since Bill worked 13 hours on Tuesday, he should get eight hours of regular pay plus four hours of 1.5x overtime pay plus one hour of 2x overtime pay:
3) One week, Bill works four hours a day from Monday through Saturday, and on Sunday he works 16 hours. Employees are entitled to one-and-a-half-time pay for working more than eight hours up to 12 hours in a workday. And employees are entitled to double-time pay for working more than 12 hours in a workday. Since Bill worked 16 hours on Sunday, he should get eight hours of regular pay plus four hours of 1.5x overtime pay plus four hours of 2x overtime pay:
4) One week, Bill works seven hours a day from Monday through Sunday. Here, Bill is entitled to one-and-a-half pay for two reasons: 1) Working more than 40 hours in a workweek, and 2) working more than six consecutive days in a workweek. In these situations, the employer should calculate how much overtime Bill is entitled to for each reason and then pay Bill the highest of the two:
- Since Bill worked 49 total hours in a workweek – which is nine more hours than the typical workweek maximum – he is entitled to nine hours of one-and-a-half overtime pay.
- Since Bill worked seven consecutive days – which is one more day than the typical workweek maximum – he is entitled to one-and-a-half pay for the seven hours he worked on the seventh day.
Since nine hours of overtime pay is bigger than seven hours of overtime pay, Bill should receive nine hours of overtime compensation.
5) One week, Bill works seven hours a day from Monday through Saturday, and then 13 hours on Sunday. Here, Bill is entitled to one-and-a-half pay for two reasons: 1) Working more than 40 hours in a workweek, and 2) working more than six consecutive days in a workweek. He is also entitled to double-time pay for working more than eight hours on a seventh consecutive workday (Sunday).
Here, Bill worked 15 hours total of overtime. After finishing five hours of work on Saturday, he started to exceed the 40-hour workweek maximum. Those additional two hours he worked on Saturday merit one-and-a-half overtime pay.
For Sunday – which was his seventh consecutive day in a workweek – Bill should get one-and-a-half time pay for the first eight hours and double pay for the final five hours:
3.2. Farm workers
Separate rules apply to agricultural workers under California state law. Agricultural workers at companies with 25 or fewer employees will not start receiving one-and-a-half-time or double-time wages for overtime work until January 1, 2025. For agricultural workers at companies with 26 or more employees, the start date for overtime pay is January 1, 2022. 17
4. How soon do I receive overtime pay?
Employers must pay overtime by the second regular payday following the overtime work. This way, employers have extra time to collect enough money to make good on overtime pay. 18
5. What if my employer refuses to pay me overtime?
Employees owed overtime typically file a wage claim with the Division of Labor Standards Enforcement (DLSE) / California’s Labor Commissioner’s Office.
A Deputy Labor Commissioner will then decide whether to:
- Dismiss the claim;
- Refer the matter to a conference, where the parties can hopefully resolve the claim without a hearing. The parties will be mailed the date, time, and location of the conference; or
- Refer the matter to a hearing, where the parties and witnesses can testify under oath in a recorded proceeding. Afterwards, the parties will be served with an ODA, short for an Order, Decision, or Award of the Labor Commissioner. (ODAs can be appealed in a civil court trial. If the employer appeals, the DSLE can represent employees who cannot afford an employment lawyer.) If an employer fails to pay back wages after being ordered to do so, a court will enter a judgment against the employer. The employee can try to collect on it him/herself or ask that the DLSE do it.
Alternatively, employees can sue the employer for unpaid overtime in a traditional lawsuit. An employer’s officers, directors, owners, and/or managing agents may also be held individually liable if they violate wage and hour laws.19
If an employer retaliates against an employer for filing – or threatening to file – a wage claim, the employee can file a complaint with the Labor Commissioner’s Office or sue the employer. Note that former employees who are still owed overtime pay are also entitled to a waiting time penalty. 20
Unpaid overtime complaints are the most common claims in California wage and hour law. 21 Sometimes employers underpay simply because they are ignorant of the law. Other employers purposely underpay (“wage theft“). Either way, employees who are entitled to overtime pay may not waive their right to it. 22
6. Can I be paid overtime if my employer did not authorize it first?
Yes. Non-exempt employees in California are entitled to overtime pay for unauthorized overtime, which means that the employer did not expressly tell them to work extra hours. All that is required is that the employer
- knew – or
- should have known – that the employee was working extra hours.
(The legal term for this is that the employee was “suffered or permitted to work, whether or not required to do so.”)
However, employers can discipline employers for working overtime without getting permission first. And employees cannot intentionally keep their bosses in the dark about working extra hours. 23
Note that employers are never allowed to ask their workers to work “off the clock.” 24
7. Can my employer require me to work extra hours?
Yes. Under California’s overtime laws, employers usually can require mandatory overtime (“forced overtime”). Employers can discipline workers – including firing them – who refuse to comply. An exception is that employers cannot discipline workers who refuse to work the seventh day of a workweek. 25
Note that one of the purposes of overtime pay laws is to encourage employers to hire more people so they can avoid having to pay overtime. This way,
- more people are employed,
- these employees do not have to work extra hours, and
- the employer does not have to pay time-and-a-half or double rates.
8. Can my employer force me to take comp time pay instead of overtime?
No, California employees are not required to take paid time off (comp time) in lieu of being paid overtime. But employees can ask the employer for comp time instead of overtime if all of the following are true:
- The employee works 40-hour (has full-time employment);
- The employee asked the employer in writing for comp time instead of overtime;
- The employee has not yet accumulated more than 240 hours of comp time; and
- There was already a written agreement between the employer and employee regarding comp time.
Furthermore, the compensating time must be the same as the overtime rate. So if the overtime rate is time-and-a-half, then the employer must grant an hour-and-a-half of paid time off for each overtime hour worked. 26
9. What is my regular rate of pay?
It depends on whether the employee is hourly, salaried, or piece-rate. In any case, a worker’s regular rate of pay may not be below minimum wage (with some exceptions). California employers use their employees’ regular rate of pay to calculate overtime pay.
9.1. Hourly employees
The regular rate of pay for hourly, non-exempt employees is typically his/her hourly rate. So if someone earns $15 an hour, their regular rate of pay is $15 an hour. Then that means their overtime remuneration would be
- $22.50 an hour for time-and-a-half pay (1.5 times $15) and
- $30 an hour for double-time pay (2 times $15).
But if the same employer pays one employee two or more rates during a single workweek, then their regular rate of pay is determined by dividing the employee’s total earnings (including overtime) by the total hours worked during that workweek. This weighted average is the employee’s regular rate of pay.
Note that shift differentials and/or the “per hour value” of any non-hourly payments the worker has earned factor into what the regular rate of pay is.
In some cases, hourly employees receive a non-discretionary, flat-sum bonus. (Non-discretionary bonuses reward time, skill, or they can serve as an incentive to stay in the job). These bonuses would get divided by the non-overtime hours worked and added to the hourly wage to compute the regular rate of pay.
Example: One week Laura works 30 non-overtime hours at $15 per hour. She earns a $30 bonus. The $30 is divided by the 30 non-overtime hours. This equals $1. Therefore, Laura’s rate of pay is $16 an hour ($15 plus $1).
Payments that are not included in the regular rate of pay include:
- discretionary bonuses
- reimbursements for expenses
- pay during periods when no work is done (such as sick time, vacations, holidays, lack of work)
- premium pay for work on holidays or weekends as long as the pay is at least one-and-a-half times the regular rate for similar work done during normal work hours27
9.2. Salaried employees
Non-exempt salaried employees can compute their regular rate of pay by dividing their weekly salary by the number of non-overtime hours they work (up to 40 hours). So if an employee works 40 hours a week and receives $600 each week, their regular rate of pay is $15 an hour ($600 divided by 40 hours).28
In order to calculate one’s weekly salary,
- multiply the monthly salary by twelve (months) and then
- divide the product by 52 (weeks).
9.3. Piece-rate and commission employees
There are three main ways to determine a regular rate of pay in order to calculate overtime for piecework or commission employees:
- The regular rate of pay is simply the piece or commission rate.
- The regular rate of pay is computed by dividing the employee’s workweek earnings by the hours worked.
- The regular rate of pay can be the group rate. The group rate is computed by dividing the total pieces by the number of people in the group. Then each worker receives the group rate multiplied by the number of hours he or she worked.29
Then the standard time-and-a-half and double-time rules apply to any overtime hours worked.
Some workers earn different rates from the same employer depending on the specific job they do. For people who earn more than two rates, their rate of pay is a “weighted average.” The weighted average is calculated by dividing the workweek’s entire earnings by all the hours worked.
- California Labor Code section 510; see California Labor Code (LC) 2661; see also Industrial Welfare Commission Wage Orders, California Department of Industrial Relations (DIR); Labor Code 1173; see also the federal law, the Fair Labor Standards Act (FLSA).
- Labor Code 515; Cal. Code Regs., tit. 8, § 11040; see also Minimum Wage, DIR.
- Cal. Code Regs., tit. 8, §§ 11010 – 11170.
- Labor Code 514.
- Cal. Code Regs., tit. 8, §§ 11040, 11050, 11140, 11150.
- 29 U.S.C. § 207; LC, 510; LC 3353.
- LC 510-510; Cal. Code Regs., tit. 8, §§ 11010 – 11170;
- LC 510.
- Same; see also Seymore v. Metson Marine, Inc., (2011) 194 Cal.App.4th 361.
- LC 510; Cal. Code Regs., tit. 8 § 11170; Monzon v. Schaefer Ambulance Serv. (1990) 224 Cal.App.3d 16.
- LC 510.
- LC 510 – 511.
- Cal. Code Regs., tit. 8, §§ 11010 – 11170.
- See Gomez v. Lincare, Inc., (2009) 173 Cal.App.4th 508.
- See Mitchell v. King Packing Co. (1956) 350 U.S. 260.
- See LC 510; 29 C.F.R. § 785.37; Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575;
- California Assembly Bill 1066 (2020).
- LC 204.
- See Post v. Palo/Haklar & Associates, (2000) 23 Cal.4th 942. LC 558.1.
- LC 203.
- See Stephanie Plancich, et al., Trends in Wage and Hour Settlements: 2015 Update.
- LC 1194.
- See Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575 (“Wage Order No. 14-80 defines “hours worked” as ‘the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.'”). See Troester v. Starbucks Corp. (2018) 5 Cal.5th 829. See Isner v. Falkenberg/Gilliam & Assoc. (2008) 160 Cal.App.4th 1393. See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.
- See Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129.
- See Overtime, DIR.
- LC 204.3.
- See Huntington Memorial Hospital v. Superior Court (2005) 131 Cal.App.4th 893.; Alvarado v. Dart Container Corporation of California, (2016) 4 Cal. 5th 542; see note 25.
- LC 515.
- See note 25.