Filing a Lawsuit for Unpaid OT in California

If you work over 8 hours in a day or more than 40 hours in a week, your employer may be required to pay overtime wages. If your employer has not paid you overtime under California wage and hour laws, you may be able to recover unpaid OT by filing a wage and hour lawsuit.

Below, our California wage and hour lawyers discuss the following frequently asked questions about lawsuits for unpaid wages for California employees:

Unpaidot
If your employer has not paid you overtime under California wage and hour laws, you may be able to recover unpaid OT

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

1. Do I get overtime for my job in California?

Non-exempt workers in California are required to be paid overtime wages if they work overtime. It is against California labor law for an employer to fail to pay an employee for overtime work.1

Employees are generally classified as exempt or non-exempt to California wage and hour laws. 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 may not be subject to wage and hour laws, including overtime and lunch break laws.3 Exempt employees may include:

  • White-collar workers
  • Independent contractors
  • Employees earning commissions

Some employers may incorrectly classify a non-exempt employee as exempt. In some cases, an employer will misclassify an employee as exempt in order to avoid paying overtime. In order to qualify as an exempt employee in California, employees must meet the following requirements:

  1. Spend more than one-half of their work time performing intellectual, managerial or creative work;
  2. Customarily and regularly exercise discretion and independent judgment in performing those job duties; and
  3. Earn a monthly salary equivalent to at least twice the California minimum wage for full-time employment.4,

2. How much overtime pay do I get?

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

Non-exempt employees who do not have an alternative workweek schedule 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.6

Employees are entitled to minimum overtime pay at one and one-half (1 ½) times their regular hourly rate of pay.

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 the regular hourly rate of pay.7

Even if the employer does not require overtime work, employers may owe employees overtime pay as long as the employer permitted the employee to perform the extra work.8

No “Off-the-Clock” Work

Some employers unlawfully try and have an employee clock out while still performing some work function. An employer in California may not require employees 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
  • Having to take a lunch break while staying at the front desk

Work done off the clock is compensated at the employee's regular hourly wage. If any off-the-clock work is performed that puts the employee over the maximum number of work hours, the employee is eligible for overtime pay.

Example: Frank works as a receptionist at a dental office. Frank works 8 hours a day, 5 days a week, from 8 a.m. to 5 p.m. with a one-hour lunch break. Frank's boss tells Frank to take his lunch at the front desk in case anyone comes in the office while the other employees are on their lunch break.

One day, when Frank is about to go home for the evening, Frank's boss says Frank messed up a bunch of insurance forms. Franks boss says he needs to fix them before he can go home. Frank's boss says Frank will have to fix the forms after he clocks out because he should have done it right the first time.

Frank may be owed overtime for his lunch breaks and for staying after to fix the insurance forms. If Frank's employer says Frank has to stay at the desk during his lunch break, he is still “on duty” and has to be compensated. Even if Frank made a mistake with the insurance forms, he cannot be required to fix the forms on his own time. Frank cannot be required to perform “off-the-clock” work without compensation.

3. Can I sue my employer for unpaid OT in California?

If your employer has violated California wage and hour laws, you may be able to recover the unpaid overtime pay through filing a wage claim or filing a lawsuit against your employer.10

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 an employee to work off the clock
  • Requiring an employee to work during an unpaid lunch break
  • Misclassifying employees as “exempt employees”
  • Misclassifying employees as “independent contractors”

4. Is it worth filing a lawsuit for only a little bit of overtime pay?

Many employees think it is not worth filing a lawsuit if they are only owed a few hundred dollars. However, in overtime pay lawsuits, the employee is eligible to recover his or her unpaid overtime compensation, in addition to interest and attorney's fees.11

Under federal law, any employer who violates provisions of the FLSA overtime wage laws is liable to the employee or employees affected in the amount of their unpaid minimum wages or overtime compensation. In addition, the employer may be liable for an additional equal amount as liquidated damages.12

Just because your unpaid overtime is not a lot of money does not mean you should avoid filing a lawsuit. An employer should be held accountable for any violations of California labor laws. An employer who does not pay an employee for all of their work may be taking advantage of other employees.

Employers may have violated California labor laws against multiple employees. This can result in a successful California wage and hour class action lawsuits involving a number of claims for unpaid wages for overtime.

5. How long do I have to file a lawsuit for unpaid overtime in California?

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.13

6. How much money will I get for an unpaid OT lawsuit in California?

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
  • Court costs14

If your employer violated federal labor laws under the FLSA, you may also be able to collect liquidated damages equal to the amount of unpaid wages, or double damages.15

Under California labor laws, if your employer's overtime pay violation was not due to a good faith error, you may be eligible for double damages. Liquidated damages include an amount equal to the unpaid wages plus interest.16

7. Can my boss fire me for filing an unpaid overtime lawsuit?

Employers in California cannot retaliate against workers for exercising their rights under California labor laws.17

If an employer takes retaliatory action, including termination, against an employee for citing wage and hour violations or filing an unpaid wages lawsuit, the employer may be engaging in "wrongful termination".

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For questions about California wage and hour laws, unpaid 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 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.


Legal References:

  1. 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.”)
  2. 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. Any hearing conducted pursuant to this subdivision shall be concluded not later than July 1, 2000.")
  3. 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.")
  4. Labor Code 515 LC, endnote 2 above.
  5. 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.")
  6. Same.
  7. Same.
  8. 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. 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).) ")
  9. Adoma v. University of Phoenix, Inc. (E.D. Cal. 2010) 270 F.R.D. 543, 548. ("California law requires that an employer pay for all hours that it “engages, suffers, or permits” an employee to work.")
  10. 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.")
  11. Same.
  12. 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.”)
  13. 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.")
  14. Labor Code 1194 LC, endnote 10 above.
  15. 29 U.S.C. 216(b), endnote 12 above.
  16. 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.")
  17. 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.

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