There are several ways in which employers may fail to compensate their employees for their work and time. One of these ways is failing to pay for overtime hours an employee works. Even though most workers are eligible for overtime compensation, not all of them get it. Most U.S states follow federal laws when determining overtime wages for their employees. However, the state of California has its independent overtime laws that are different and stricter compared to federal laws. Employers should adhere to these laws when compensating their workers.

If employers do not adhere to these laws, employees have a right to demand their pay. The most effective way to do this is to file a lawsuit against your employer. For your suit to stand a chance of being successful, you need legal help from an experienced overtime attorney. At the Stop Unpaid Wages, our work is to help employees from all over California receive their entitled wages that their employers have refused to pay. Reach out to us if you have a case of unpaid overtime wages, and our attorneys will act appropriately to ensure you get the help you need.

An Overview of The Overtime Law

Most workers in California are eligible for overtime pay if they work beyond a given amount of hours. Overtime pay refers to a form of a higher payment that a worker could earn when they work beyond a given number of hours in a workweek or a workday.

The overtime law of California dictates that non-exempt workers be paid overtime wages if they work:

  • Over eight hours in one workday
  • Over forty hours in one workweek
  • Over six days in one workweek

The law also dictates that employers should pay time and one half for the excess hours. Additionally, employers should pay double-time overtime wages if an employee works more than twelve hours in one workday or more than eight hours on the 7th day of a workweek.

Also, employers should pay workers overtime wages for the unauthorized overtime hours they (employers) did not require or request. This is especially true if the employer allowed the worker to do the additional work.

A workday equals 24 hours. It could start at any time of the day. However, subsequent workdays have to begin at a similar time. Workdays do not need to coincide with the beginning of a worker’s shift. Also, an employer may establish different workdays for different shifts.  After workdays are set, they are only modified in case the change is permanent; not to avoid the payment of overtime wages.

A workweek, on the other hand, is seven successive twenty-four-hour periods consisting of a total of 168 hours. These periods have to begin at the same time and day every week. A workweek may start at any day and any time provided the day and time are fixed and recurring. Just like a workday, after they have been established, the beginning point of any workweek cannot be changed. It is only modified if that change is permanent and has not been made to avoid the payment of overtime wages.

Many of the California non-exempt workers are entitled to overtime wages. The overtime amount varies depending on how long a worker’s shift is, and the days they worked in the workweek.

The Purpose of the Law

Paying increased wages for the time that exceeds the usual amount of work has two goals. For one, the extra payments provide just compensation to workers that sacrifice their breaks and work long hours. The second goal is that overtime pay incentivizes employers to employ more workers and avoid paying increased overtime wages. Thus, overtime contributes to elevated employment rates and at the same time, saves workers from excess work.

Since overtime law serves essential purposes, courts interpret it liberally to protect workers. Thus, if there is ambiguity about particular parts of the law, courts generally resolve it in favor of the employee.

Laws that Govern Overtime Pay

Both California and federal laws dictate that employers should pay overtime wages to most workers. Typically, we have two primary laws that govern overtime wages in California. They include:

  • California Labor Code 510
  • The federal Fair Labor Standards Act (FLSA)

Additionally, there are court cases and administrative regulations that interpret these laws. When federal and state laws vary, the overall law that favors the employee the most will apply. Usually, the California overtime law is more defensive of workers’ rights compared to federal laws. Thus, in cases to do with overtime payment, California law governs.

Employees Entitled to Overtime Wages

California overtime law applies to every employee in California. This includes several salaried workers. However, there are many types of workers who are not eligible for overtime wages. They include:

An Exempt Worker under Wage and Hour Law

An exempt employee is an employee to whom overtime laws and other wage and hour laws like laws requiring rest and meal breaks don’t apply. The biggest category of exempt workers are those that are affected by the white-collar exemption. For white-collar exempt workers not to be protected by overtime laws, they have to meet all these requirements:

  • Be predominantly engaged in administrative, professional, or executive duties. This means they have to spend half or more than half of their time performing these tasks.
  • Customarily and regularly exercise independent judgment and discretion at work
  • Receive a salary that equals at least two times the California minimum wage for full-time work. Full-time work means forty hours per week of work.

Additionally, the duties and responsibilities of exempt workers have to meet those specified under the law.

Other employees, apart from the executive, administrative, and professional workers who are exempt under overtime law include:

Outside Salespersons

Workers who meet all the requirements to be outside salespersons are classified as exempt employees. Outside salespersons are defined as people who:

  • Are at least eighteen years old
  • Spend over half of the working time far from their workplaces
  • Sell contracts, services, or items

Unionized Employees

Sometimes, union workers are exempt from overtime laws. For you to be exempt from this category, your collective bargaining agreement should clearly state your working conditions, the wages you receive, and work hours. Additionally, the agreement must state the rates of premium wages for all the overtime hours you worked. It also has to state a standard hourly pay rate of not less than 30% more than the state minimum wage. Failure for the agreement to meet these requirements will subject you to protection by overtime law.

Job-specific Exemptions

Partly, the overtime law is controlled by regulations known as wage orders issued by the Industrial Welfare Commission. The orders have brought many exceptions to the overtime law that affect employees in particular jobs or industries. Jobs to which specific overtime laws apply include:

  • Personal attendants
  • Live-in domestic employees
  • Ambulance attendants and drivers
  • Home managers for the elderly
  • Camp counselors
  • Providers of residential childcare
  • The worker’s children, spouse, and parents
  • Agricultural occupations


It is not a must that you be a California resident to be protected by the overtime laws. California workers are protected by these laws whether or not they have work privileges in the U.S or are legal residents. However, it is not clear whether workers from other states who work briefly in California for not more than one day are eligible for protection under overtime laws.

An Independent Contractor instead of an Employee

The labor law does not protect independent contractors in the same way employees are protected. This includes not being entitled to overtime wages. An independent contractor is not classified as an employee. It is a person who:

  • Does services under a contract that says they will generate defined results for a specified remuneration, and
  • Controls the means of accomplishing the results

Workers Subject to Alternative Workweek Schedules

The usual overtime laws do not apply to employees whose employers have established a different workweek schedule separate from the regular schedule. Alternative workweek schedules are contracts between a section of workers and the employer. It is whereby these two parties agree that the workers could work up to ten hours per day without being paid overtime wages.

For an alternative workweek schedule to be an exception to overtime laws, it should be approved by less than two-thirds of the affected workers in a single work unit. The approval has to be by secret ballot.

Note that workers will still be owed overtime wages if they work beyond the hours authorized under alternative workweek schedules.  They will also be subject to overtime in case they work over forty hours in one workweek.

An additional requirement to be protected by overtime law is that you have to be over eighteen years. Or, you have to be over sixteen years and legally permitted to leave school to go and work.

Overtime Law and Unauthorized Overtime

Courts have since established that unapproved overtime still applies as overtime as per the wage and hour law. This means that even if an employer does not specifically request or require you to work overtime, they still have to pay you the overtime wage. This still applies even if they do not approve in advance that you should work overtime.

However, an employee is only eligible for overtime wages for unapproved overtime if the employer permits or suffers them to work extra hours. This means an employer should know or should have known that the employee was working overtime or off the clock.

Also, it’s essential to keep in mind that several employers have put policies in place that prohibit employees from working unapproved overtime. An employer can discipline or worse, terminate an employee if they violate the policy. However, despite disciplining you, they still have to fulfill the obligation of compensating you for the unapproved overtime.

What if Your Employer Refuses to Pay You Overtime?

Claims of unpaid overtime are the most common and most significant classification of complaints under the wage and hour laws. Studies have revealed that most unpaid overtime cases are reported in California compared to other states. Unpaid overtime may be as a result of an employer’s lack of understanding of the wage and hour laws. In other cases, it may also be a type of wage theft Employers who want to adhere to the law should make sure they understand overtime laws.

Equally, workers must understand what rights they have to overtime wages so they can be paid all their entitled wages.

Under the employment law, workers have the right to file a wage and hour lawsuit against employers who fail or refuse to pay them overtime as stipulated by the overtime law.  If the lawsuit is successful, an employee could receive:

  • The unpaid overtime wages the employer had withheld
  • Interest on the overtime wages amount
  • Reasonable litigation costs and attorney’s fees

In most cases, an employee who has been deprived of overtime by their employer is not alone. In case your employer systematically fails to compensate you for your overtime work, you can join a class-action suit filed by an experienced overtime attorney.

Employee’s Standard Pay Rate

Overtime rates depend on the worker’s regular pay rate. Determining your regular rate is based on how you are compensated. If you are paid per hour and you do not receive any other payment, then the hourly pay rate is your regular rate.

For a non-exempt worker earning a salary and regularly works forty hours a week, the standard rate of pay is determined by dividing their weekly pay by 40.49. Therefore, your salary will have you compensated only for standard non-overtime.

Under certain circumstances, the standard pay rate can be quite challenging to determine. These circumstances are when you receive two or more forms of compensation. The general law in such a case is; the standard rate must depend on your wages and most of the other payments you earn for the work you did in the workweek.  

Note that certain employers might not designate payment rates with the intention of avoiding overtime laws. Thus, a worker’s payment rate has to be determined consistently and in a manner that correctly reflects the worker’s pay practices.

Calculating Overtime

California overtime depends on your regular hourly pay rate. If you are not paid per hour but earns a yearly salary and are eligible for overtime wages, calculate your hourly rate by dividing your annual remuneration by 52. 52 is the total number of weeks in a year. Then, divide the answer by forty. Forty, in this case, is the total number of hours in one workweek.

In case you receive two or more different pay rates in a workweek, your overtime will be determined using an adjusted average of the rates. If you take an off day in a workweek, for instance, a sick or vacation day, the hours of that day can’t be included in your overtime calculation. And if you work forty-eight hours in one workweek, but you took one workday (8 hours) off, you will not be entitled to overtime. This is because you didn’t work for more than forty hours.

Also, there are other benefits which cannot be considered as overtime. They include discretionary bonuses like annual Christmas bonuses. This is because these benefits are counted outside of a worker’s regular pay rate. On the contrary, non-discretionary bonuses depend on the hours you worked as well as the quality of your work. These benefits are considered when doing overtime calculations since they count as part of your regular pay rate.

Workweeks Versus Calendar Weeks

Earlier, we mentioned that both California and federal laws require non-exempt workers to be compensated for their overtime when they work over forty hours in one workweek. A workweek isn’t necessarily similar to a typical calendar week. Several people consider a calendar week to begin on Monday.

California law grants workers the flexibility to choose a workweek that favors them. A workweek designated by an employer doesn’t have to be the same as a calendar week. For instance, an employer can establish alternating or rotating schedules that have employees beginning work on different days and at varied times.

The workweek your employer uses does not have to match with your designated workweek. However, any dissimilarity between these two has to be substantiated by a legal business purpose. An employer cannot come up with a workweek in a manner meant to evade overtime payment.

Determining Hours Worked

An employer is required by law to compensate non-exempt workers for all the excess hours worked past the regular eight working hours in a day or forty in a week. They must also pay compensation for the hours an employee worked on the 7th day of a workweek.

We have two tests that determine whether or not a worker worked at a particular time. They include:

  • The worker works or is authorized to work
  • The worker is under his or her employer’s control

These two tests are different from each other. The time during which you are under your employer’s control counts as the hours worked. This is the case even if you are not permitted or required to work those hours.

Overtime Pyramiding is not Allowed

The general overtime rule is; any work done that goes beyond eight hours per workday or forty hours a workweek has to be compensated at overtime rates. The light interpretation of this law is all the time worked after the first forty workweek hours are overtime. This would be so even if part of the time was counted as a worker’s daily overtime pay.

Overtime pyramiding is the double-counting of a worker’s weekly and daily hours. The name is given because this practice attempts to pile up overtime hours on other overtime hours. California courts have disapproved of overtime pyramiding.

If overtime pyramid is allowed, it will lead to particular workers getting double compensation for the excess time they work. Due to this, overtime pyramiding is not legal in California. Therefore, employers are not permitted to count a worker’s daily overtime towards their weekly overtime. Instead, the right way to determine a worker’s overtime pay is by following this simple procedure:

  • Determining the daily overtime, the worker has accumulated in a workweek
  • Subtracting those hours from the overall hours the worker worked in the workweek
  • In case the worker has over forty hours leftover, the additional hours should be compensated at time and a half rate.

When to Pay Overtime Wages

As we mentioned before, overtime wages should, at all times, be given to entitled workers who work beyond eight hours in one workday, beyond forty hours in one workweek, or on the 7th day of a workweek. Workers should be paid their overtime wages in their following paycheck. This rule applies whether or not the employer authorized the overtime in advance.

A worker is not allowed to prevent their employer from being aware that they are about to work overtime. Theoretically, an employer should have the chance to authorize or refuse overtime requests beforehand.

Workers cannot opt not to receive overtime wages. In case they are entitled to overtime wages under the state law, then they have to be paid. If they are not paid the wages they are entitled to, they can file a lawsuit against their employers. With legal protection, these workers can compel their employers to pay all the overtime wages they have not been paying. The statute of limitations for filing a lawsuit for unpaid overtime is three years from the date you raised the claim.

Find a Los Angeles Overtime Pay Attorney Near Me

Overtime wage lawsuits can be filed as class-action suits under California law. Usually, the workers who take part in a class-action suit as class representatives are awarded additional compensation in addition to their recovery as an incentive payment.  If you have any questions about your case or want to know more about California overtime law, call Stop Unpaid Wages law firm at 424-781-8411. We will direct you to one of our experienced overtime attorneys to whom you can share your case confidently. We serve employees across California who have issues with their employers concerning unpaid wages.