California Overtime Labor Law: Do You Need an Employment Attorney?

Does your employer routinely deny you overtime pay? Let me guess, it wasn’t “authorized” right? This is just one example of a sneaky trick or lie that some employers try to get employees to believe in order to avoid paying overtime.

Many employers take advantage of employees, banking on the assumption that employees will not assert themselves for fear of retaliation or termination. They might also assume that employees don’t understand California’s overtime laws. When this happens, employers are not only stealing from its employees but breaking the law, too, and you would be fired for doing the same.

There are some exemptions to California’s overtime laws, but if you are not aware of the exemptions, chances are that you are not exempt. Some exemptions are healthcare workers like nurses, outside salespersons, taxi-cab drivers, airline employees, crew members employed with a commercial fishing boat. (See what I mean about knowing if you are exempt?)

Some employers will even purposefully misclassify an employee’s position to avoid paying overtime. If you find employment with a company that classifies you exempt, and you have never been exempt before in your normal line of work, your employer has possibly pulled a fast one on you. Some employers will classify you as an “independent contractor” when your not. If you have never been an independent contractor before in your normal line of work, and an employer is telling you that they are hiring you as an independent contractor, they are evading paying worker’s compensation insurance and all taxes in addition to overtime. Some employers will give you a manager title, when in fact, your not. If you fall into these circumstances, you may want to think about contacting an attorney that specializes in labor law and/or employment law.

I am going to explain overtime as it pertains to you, the normal employee in California, who is being denied overtime pay and how it is calculated in terms of the 8-hour workday, the 40-hour workweek, and the options that are available to collect money that is lawfully yours.

photo courtesy of ilamont.com; Flickr
photo courtesy of ilamont.com; Flickr

How is Overtime Pay Determined in California?

Overtime Calculation:

The easy part of California’s overtime laws is that it applies to any hours worked in excess of eight hours in one day. You must be paid overtime. For an hourly worker, the rate of pay is 1-1/2 times your normal rate of pay after 8 hours and up to 12 hours. Simply multiply your rate of pay by 1.5. For example, if your rate of pay is $15.00 an hour, and you worked ten hours, the last two hours of pay is $22.50 ($15.00 x 1.5) per hour, often referred to as time-and-a-half.

Any hours worked after 12 hours is paid at double-time, twice the amount of your normal rate of pay. In the above example, if you worked a total of 13 hours, you would receive 8 hours at your normal rate of pay ($15.00), 4 hours of time-and-a-half ($22.50), and 1 hour of double-time ($30.00).

Overtime that Involves Holiday, Sick and/or Vacation Time in a Work Week:

This is where it can get tricky for some people to understand.

Overtime pay in California is based on the 8 hour workday. Separately paid, is overtime for hours worked in excess of 40 hours in a workweek (this has no impact on the workday overtime laws). The key words in that sentence are: worked and workweek. Simply put, you must actually work over 40 hours in a (work) week in order to receive overtime on a day you don’t typically work. And the 40 hours must be in the same workweek.

The easier part of the above is explaining holiday, sick and vacation time as it pertains to overtime. Let’s say that Monday is a paid holiday (or you were out sick or took a vacation day). You worked Tuesday, Wednesday, Thursday, Friday, and Saturday. Saturday is not paid overtime (unless you work over 8 hours), because you did not actually work on Monday. This is assuming, of course, that all of the above days fell into your employer’s workweek. Overtime might be applicable if your employer does not include that Monday in the workweek. Though this may sound difficult to understand, it really is not that complex.

First of all, though employers are able to determine a workweek for its employees, it is unlawful for an employer to change the workweek in order to avoid paying overtime. A workweek is a period of seven consecutive days, starting with the same day each week and ending with the same day each week.

In order to determine your employer’s workweek, if paid weekly, simply look at your paystub that indicates the period beginning and ending dates. For employees paid on a bi-monthly basis, you will need to either ask your employer or refer to your employee handbook.

In the above example, if your employer’s workweek begins on a Sunday and ends on a Saturday (the day you worked that you thought should be paid at overtime), you are not paid overtime for that Saturday (unless you worked over 8 hours). However, if your employer’s workweek begins on the Saturday that you worked, that Saturday falls into the new workweek, and you should be paid overtime as long as you work over 40 hours in that new workweek.

Options:

This is going to be up to you and how assertive you are. Keep in mind that your employer is taking advantage of you, stealing from you, and breaking the law. You have three options (aside from doing nothing):

--You can be assertive by informing your employer that you are aware of the labor laws in California, and if you don’t receive your overtime pay you will be filing a wage claim. The link to file is here, found at the California’s Division of Labor Standards Enforcement (DLSE), formally known as the California Labor Board.

--You can wait to file a wage claim with DLSE, filing after your employment is terminated (utilize that form in the link provided). The timely filing requirement with DLSE is three years, so you are able to file for three years’ worth of unpaid overtime from the date of occurrence.

--You can contact an employment attorney that specializes in labor law. If your employer habitually denies you overtime, this might be the best way to go about receiving your money. While DLSE only goes back for three years, an employment attorney goes back four years. An employment attorney will also be able to obtain fines, penalties and interest from your employer that can be assessed to employers under California law; however, DLSE will not impose these additional assessments. An employment attorney is also able to obtain attorney fees separately, aside from what you are awarded. So what you are awarded, you are able to keep, depending on the attorney's retainer agreement.

If you file a wage claim with DLSE and the amount is small, you probably shouldn’t have any problem receiving your unpaid overtime. However; if you are claiming a large amount of money, your employer could appeal a decision by DLSE, in which case you should probably seek the services of an attorney specializing in employment law prior to filing with DLSE, since you will most likely need an attorney anyway.

Always make a copy of your time cards (including the ones they make you change) and your paycheck stubs. You may also want to write down the reason you worked overtime (meeting, client phone call, mandated by employer, etc.). Write down any conversations you had with your employer regarding the removal of your overtime from your time card, who you spoke with, the date and the time, and what excuse they gave you for not paying you overtime or forcing you to change your timecard.

Employers that refuse to pay overtime are breaking the law. Most likely, it is not only you that the employer is stealing from and deceiving. There are laws in California that employers must abide by or face penalties. Employers that routinely deny overtime to its workers will continue to do so until an employee decides to take action.

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