Overtime Pay

What California Employees Are Owed for Extra Hours

Whether you are paid hourly, salary, or commission, California law requires most employees to be paid a premium wage for the extra hours they work – and California’s rules are stronger than federal law. Non-exempt employees are entitled to premium overtime pay for all hours worked over eight in a day. The same premium pay rule applies for hours worked over forty in a week.  The premium hourly rate must also be correctly calculated to include all remuneration earned in the pay period. When an employer fails to pay overtime, pays it at the wrong rate, or classifies a worker as “exempt” to avoid paying it at all, the unpaid amounts can add up quickly.

If you were denied overtime, paid overtime at a rate that left out bonuses or commissions, or told you were not eligible because you are paid a salary, your rights may have been violated.

Who Is Entitled to Overtime in California

Overtime protections apply to non-exempt employees, which includes most hourly workers and many salaried ones. Whether you are exempt depends on what you actually do and how you are paid, not on your job title or the fact that you receive a salary. To be exempt, an employee generally must earn at least twice the state minimum wage for full-time work and spend more than half of their time on genuinely exempt duties, such as executive, administrative, or professional work. If your day-to-day duties do not meet that test, you are likely owed overtime no matter what your offer letter says.

California’s Overtime Rules

Non-exempt employees are entitled to premium pay based on the hours they work in a day and in a week:

• One and one-half times your regular rate for hours worked beyond 8 in a workday, up to 12
• One and one-half times your regular rate for hours worked beyond 40 in a workweek
• One and one-half times your regular rate for the first 8 hours worked on the seventh consecutive day in a workweek
• Double your regular rate for hours worked beyond 12 in a workday
• Double your regular rate for hours worked beyond 8 on the seventh consecutive day in a workweek

California is one of the few states with daily overtime. Under federal law, overtime is generally owed only after 40 hours in a week, so an employer that follows only the federal rule can still owe you significant daily overtime under California law.

How Overtime Is Calculated: The Regular Rate of Pay

Overtime is based on a defined regular rate of pay, which is not always the same as your base hourly wage. The regular rate must include all remuneration, such as nondiscretionary bonuses, commissions, piece-rate earnings, and shift differentials. When an employer calculates overtime using only the base hourly rate and leaves out other wages, every overtime hour is underpaid. This is one of the most common and least obvious ways workers lose overtime they have earned.

Common Ways Employers Underpay Overtime

Overtime violations are often built into how a company runs its payroll. Common examples include:

• Misclassifying employees as exempt, or as independent contractors, to avoid paying overtime
• Requiring or allowing work off the clock, before or after a shift or during unpaid breaks
• Calculating overtime on the base wage alone and leaving out bonuses or commissions
• Paying only weekly overtime and ignoring California’s daily overtime rules
• Rounding or editing time records in a way that favors the employer

If any of these sounds familiar, you may be owed back pay. Related issues are covered on our pages discussing exemptions and misclassification and pay for all time worked.

What You Can Recover

If your employer failed to pay overtime correctly, you may be able to recover the unpaid wages along with interest. Depending on the facts, you may also be entitled to additional penalties, such as waiting time penalties when overtime is still unpaid after you leave the job, and civil penalties under the Private Attorneys General Act. The law may also require your employer to pay your attorney’s fees and costs.

You generally have three years to pursue unpaid overtime under the California Labor Code, and up to four years when the claim is brought under the state’s unfair competition law. Overtime pay cannot be waived by an agreement to work for a flat rate or straight time, so an agreement giving up overtime does not bar your claim. Because deadlines run from each missed payment and evidence is easier to gather early, it is best to speak with an attorney promptly.

Frequently Asked Questions

Am I entitled to overtime if I am paid a salary?

Possibly. Being paid a salary does not automatically make you exempt. Whether you are owed overtime depends on your actual duties and whether your pay meets the salary threshold for an exemption. Many salaried employees are misclassified and are owed overtime.

When does overtime pay start in California?

For non-exempt employees, overtime begins after 8 hours in a workday and after 40 hours in a workweek. Hours beyond 12 in a day are paid at double time, and special rules apply to a seventh consecutive day of work.

How is my overtime rate calculated?

Overtime is based on your regular rate of pay, not just your base hourly wage. The regular rate must include nondiscretionary bonuses, commissions, and similar earnings, so leaving them out results in underpaid overtime.

Can my employer require me to work overtime?

In most cases, yes, an employer can require overtime, but it must pay you the correct premium for those hours. It is unlawful to retaliate against you for raising concerns about unpaid or miscalculated overtime.

How long do I have to file an overtime claim in California?

You generally have three years to recover unpaid overtime under the Labor Code, and up to four years if the claim is brought under the state’s unfair competition law. Acting promptly helps preserve records and testimony.

Schedule Your Free Consultation

At Righetti Law in San Francisco, our attorneys represent employees in California state and federal courts and have decades of experience handling wage-and-hour and class action matters. We have recovered millions for our clients in court and in settlement.

Your consultation will be confidential, and we will not contact your employer.

Call our firm at 415-983-0900 for a complimentary, confidential consultation. You may also complete our online contact form.