Overtime Pay

Overtime Pay 2017-07-22T18:04:48+00:00

A Penalty for Employers

What is the overtime law in California?

Overtime is defined under California law, for most job positions, as any work done:

  • beyond 8 hours in one workday
  • beyond 40 hours in one workweek
  • in the first 8 hours on the seventh day within any one workweek

For more information about specific job categories, click on any of these links.

What is the genesis of overtime laws?

Following the crash of the stock market in 1929, the United States plummeted into the Great Depression, taking the rest of the world with it for the majority of the 1930s. The event had devastating effects on unemployment rates and personal income, prices and the gross domestic product and international trade. In some areas of this nation, unemployment rates rose to 25% (or higher), construction halted altogether, crop prices fell by more than half and new jobs were extraordinarily scarce.

Out of this dark period of America’s economic history was born the The Fair Labor Standards Act of 1938 (“FLSA”), a series of federal statutes which established a national minimum wage, prohibited most employment of minors in “oppressive child labor,” and introduced the forty-hour work week, thereby guaranteeing overtime pay for excess hours in certain jobs. The FLSA was Congress’ response to the failing national economy with expressed goals of:

  • promoting fuller employment (i.e., by penalizing employers who chose to work one person longer hours, versus working two persons shorter hours)
  • reducing rates of accident and injury
  • protecting family cohesion by allowing parents to spend more time with their families (versus being at work)

The FLSA applies to employees engaged in interstate commerce or employed by an enterprise engaged in commerce or in the production of goods for commerce, unless the employer can claim an exemption from coverage.

I work in California. Can my employer force me to work overtime hours?

While some jobs in California (e.g., underground miners, smelter workers) fall under specific prohibitions against working overtime hours, people in most job positions can be compelled to work overtime hours, but they must be paid more for it. Certain workers governed by Industrial Welfare Commission (IWC) Wage Orders (e.g., Order Nos. 8, 13 and 16) can safely refuse to work more than 72 hours in a workweek.

What are IWC Wage Orders?

California Wage Orders govern the wages, hours and working conditions of persons employed in specific industries and/or holding specific occupations. An Order is an “industry” Order if its title contains the word “industry.” Otherwise, it is an “occupational” Order. This is an important distinction and the starting place in determining the rights governing your particular job position.

In order to determine which IWC Order applies to an employee or business, it is first necessary to determine if a business is covered by an “industry” Order. An industry Order (i.e., Order Nos. 1-3 and 5-13) regulates wages, hours and working conditions in specific industries. The remaining Orders (i.e., Order Nos. 4 and 14-17) only apply when a business is not covered by an industry Order.

Examples (courtesy of the Department of Labor Standards Enforcement) of how a particular job position can fall under different Orders, depending on the nature of the business that employs it, can be found by clicking here. Largely, these Wage Orders are what dictate whether particular jobs are entitled to overtime pay and meal and rest breaks.

Can I waive my right to overtime pay?

Many people mistakenly believe that agreeing to a flat salary, piece-rate or commission-based pay structure means they have waived their right to overtime pay. However, your rights to overtime pay cannot simply be waived by agreement. Therefore, while written agreements between employees (or unions) and employers are allowed to include or expand the minimum protections afforded by federal and/or California state overtime laws, such agreements may not waive employee rights thereunder.

Do I have to have a written record of the amount of overtime I worked?

No. In fact, in our experience, very few workers (and almost no salaried workers) keep track of their overtime hours–and why would they? Usually, their employers have convinced them they were paid properly and sufficiently. For salaried workers who have been misclassified as overtime-exempt, there would be even less reason to question it.

Since everyone is presumed to be entitled to overtime pay, the burden falls on the employer to prove otherwise (i.e., that an exemption applies) but, also, to maintain and provide written time records. If the employer has not kept these records, you are allowed to provide an estimate of the amount of overtime you have worked, and you can provide that estimate on a daily, weekly, or any other basis. As in any type of dispute, however, written evidence (e.g., time slips, journal or calendar entries, notes, computer or register time logs) is always helpful, so be sure to save any documentation you have if you are considering an action to recover overtime pay. If you don’t have such records, however, don’t worry. Most workers don’t.

How can I enforce my rights to overtime pay?

California’s overtime law can be enforced through a civil action, by contacting at attorney or by contacting the Office of the Labor Commissioner and filing a claim. Federal overtime law is enforced under the Fair Labor Standards Act of 1938 by the U.S. Department of Labor (Wage and Hour Division), for employees of private-sector businesses. The Wage and Hour Division also enforces FLSA overtime law for employees of state and local governments, and Federal employees of the Library of Congress, U.S. Postal Service, Postal Rate Commission, and the Tennessee Valley Authority. The U.S. Office of Personnel Management enforces it for other Federal employees. The U.S. Congress enforces it for congressional employees.

Can my employer retaliate against my rights to overtime pay?

Absolutely not. Both the FLSA and California law have extremely strong prohibitions against any form of retaliation, and employers know this. Employers also know that, if they retaliate against workers for enforcing their rights to overtime pay, significant damages and penalties can be assessed against them. In short, while some workers fear retaliation by their employers for pursuing wage claims, retaliation simply makes no financial or other logical sense to an employer.

What if I don’t work in California?

For more information or to report employer violations, start by contacting your work state’s labor department. To look up your state’s overtime laws, visit the the U.S. Department of Labor’s list of State Labor Offices’ webpage by clicking here.

Are salaried employees entitled to overtime pay?

Overtime pay is a right defined by the law, not by your employer. While employers cannot simply label employees as “exempt” to evade the law, countless companies do by denying employees overtime pay on the false basis that these people are exempt executives (i.e., managers), administrators, professionals, or the like, although they do not meet (or perhaps even know) the legal test for these exemptions. This reality has unquestionably led to one of the biggest “cover-ups” in business history and to the filing of thousands of lawsuits in recent years alone to stop these unlawful practices. If you haven’t heard about this, don’t be surprised; you will.

Is misclassification a common occurrence?

Misclassifying employees, based upon corporate greed, ignorance or even just tradition is extremely common. Since overtime laws have been around in this nation for nearly a century, no employer can legitimately claim ignorance of their existence. For more information about overtime exemptions, read on in these FAQ pages.

This information is for illustrative and educational purposes only. It should not be construed as legal advice, the establishment of an attorney-client relationship, or as indicative of a particular outcome regarding any legal issue you might have.