Unpaid Overtime
Unpaid overtime is one of the most common wage and hour violations encountered in the workplace. Whether done intentionally, such as by misclassifying workers as exempt or forcing employees to work off the clock, or accidentally through payroll errors or sloppy bookkeeping, failure to pay overtime is a form of wage theft that can subject employers to significant penalties, on top of having to reimburse employees for unpaid overtime plus interest.
Overtime laws can be tricky, and if you are a California employer or employee questioning whether you are being paid correctly, the California employment law attorneys at Rounds & Sutter can help ensure that you are paying overtime correctly as an employer or that you are receiving the overtime pay you are entitled to as an employee. We’ll help to resolve your overtime issue efficiently and effectively inside or outside of court as necessary. For help with overtime pay issues in Ventura, Oxnard, and Camarillo, contact Rounds & Sutter LLP to speak with an experienced and dedicated California employment lawyer.
Who Is Entitled to Overtime in California?
All nonexempt employees 18 and older are entitled to overtime pay in California. In some instances, workers as young as 16 might also be entitled to overtime, provided they are not required by law to go to school and aren’t otherwise prohibited by law from engaging in the type of work at hand.
There are many different ways employees might be exempt from the overtime pay requirement. The most common exceptions are for salaried employees in executive, administrative or professional positions and independent contractors. Many other exceptions exist for workers in certain fields, such as commissioned salespeople, police officers, and hospital workers. If you are unsure whether you or your employees are entitled to overtime pay, contact our office to review your situation.
How Is Overtime Calculated?
Both California and federal law guarantee overtime for hours worked over 40 hours in a week. Any hours over 40 must be compensated at one and a half times the employee’s regular rate of pay. California goes beyond the federal law, however, and additionally requires overtime pay for hours worked over eight in a day. Also, California employees who work for seven consecutive days are entitled to overtime pay at time-and-a-half for the first eight hours worked on that seventh day.
In California, employees who work more than 12 hours a day or more than eight hours on the seventh consecutive day of work are entitled to overtime pay at twice their regular rate of pay for those extra hours.
For the purposes of overtime pay, an employee’s hours are totaled over a period of seven consecutive 24-hour days. Employers may choose to fix an employee’s workweek to start and end differently from the regular calendar week, but it must be a fixed and regularly recurring 168-hour period. Employers are not permitted to average hours over multiple weeks, either; each workweek is viewed independently, and hours worked over 40 in any given week must be paid at time and a half.
Overtime must be paid at the employee’s regular rate of pay, which includes all remuneration except for certain payments which may be lawfully excluded. These include:
- Payment for expenses incurred by the employee on behalf of the employer
- Overtime premium pay
- Premium pay for work performed on a Saturday, Sunday or holiday, provided it is a “true premium”
- Bonuses paid at the employer’s discretion
- Gifts and payments made on special occasions in the nature of gifts
- Payments for occasional periods when no work is performed because of illness, holidays, or vacations
The overtime rules cannot be so easily stated, and they quickly become complex. As an employer or employee, you can benefit from the advice of a skilled and knowledgeable employment law attorney who can guide you through these complicated laws and ensure overtime is paid correctly or represent you when it isn’t.
A Note to Employers
Employers should be particularly attuned to overtime issues because they might not only affect just one employee. Sometimes payroll errors affect an entire department or the whole workforce. In addition to paying back overtime with interest, employers can be subjected to steep penalties of $100 per violation per employee, or $200 if the violation is deemed willful. Taking steps to continuously monitor payroll, ensure proper procedures are in place, and audit and fix problems can help you avoid being hit with large penalties for overtime violations.
A Note to Employees
The right to receive overtime pay cannot be waived, and even a signed contract where the employee agrees to give up overtime is not valid. Yet although the right to overtime can’t be waived, it is still up to the employee to choose to enforce their right to overtime by taking prompt action to collect unpaid overtime. In most situations, employees can only collect unpaid overtime for the past three years. If they let the issue go on too long, they can lose the right to recover unpaid overtime that was rightfully theirs.
Contact Rounds & Sutter for Help With Overtime Issues in Ventura and Southern California
Rounds & Sutter LLP is a dedicated California employment law firm serving employers and employees in Ventura, Oxnard, Camarillo, and surrounding areas throughout Southern California. If you are having issues with unpaid overtime at your workplace, call our office at 805-650-7100 for a free initial consultation with our team of skilled and experienced California employment law attorneys.