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Unpaid Overtime Lawyers

In California, overtime is any hours worked over 8 hours in a day or 40 hours in a week.  There is an exception if your company has instituted a bona fide alternate work week in which you normally work 10 hour days, 4 days a week – in which case the overtime is after 10 hours rather than 8, but still after 40 in the week.  This alternate work week must meet certain formalities and cannot be done on a person by person basis. Unless you meet an Exemption, California requires that all hours over 8 in a day or 40 in a week or worked on the 7th consecutive day of a work week be paid at 1.5 times an employee’s regular rate of pay.  In addition, hours worked over 12 in a day or hours over 8 worked on the 7th consecutive day in a week are paid at 2 times an employee’s regular rate of pay.

Exemptions

EXECUTIVE 

Employees must be primarily engaged in managing at least one recognized department or subdivision of a business, supervise two or more employees, and have authority to make significant personnel decisions.

PROFESSIONAL 

Employees must be licensed or certified by the State of California and primarily engaged in the practice of one the of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting. The professional exemption also includes employees primarily engaged in an occupation commonly recognized as a “learned or artistic” profession.

ADMINISTRATIVE 

Employees must be primarily engaged in performing non-manual work – other than routine clerical duties – relating directly to the business policies or general business operations of the employer. Such duties may include, by way of example, analyzing business data, planning, negotiating and purchasing.

The following exemptions, which are also relatively common, have their own compensation requirements, as described below:

COMPUTER PROFESSIONALS 

must be engaged in high-level work (such as the design, development, documentation, analysis, creation, testing or modification of computer systems or programs) and must be paid either on a salary or fee basis (as defined in the regulations) at a rate not less than $81,026.75 per year, or, if compensated on an hourly basis, at a rate not less than $38.89 an hour.

LICENSED PHYSICIANS AND SURGEONS 

Must be primarily engaged in duties that require licensure and must be paid at least $70.86 in 2012 (the rate is subject to adjustment annually).

OUTSIDE SALESPEOPLE 

Must spend more than 50% of their working time away from their employer’s place of business.

INSIDE SALESPEOPLE 

that are governed by Wage Orders 4 and 7 may be exempt from overtime requirements (but not from other wage and hour laws) if they earn at least 1½ times the minimum wage and earn more than half their compensation through commissions:

Overtime Requirements

Unless a non-exempt employee is covered by one of the three overtime exceptions discussed below, an employer must pay daily overtime to the non-exempt employee as follows:

  1. Time-and-a-half (i.e., one and one-half times an employee’s regular rate of pay) for:
  • All hours worked beyond eight hours, up to an including 12 hours, in any workday; and
  • The first eight hours worked on an employee’s seventh consecutive day of work in a workweek.
  1. Double time (i.e., two times an employee’s regular rate of pay) for:
  • All hours worked beyond 12 hours in a workday; and
  • All hours worked beyond eight hours on an employee’s seventh consecutive day worked in a workweek.

Weekly overtime remains in effect, requiring that employers pay time-and-a-half for all straight-time hours worked beyond 40 hours in a workweek.

New Overtime Regulations Proposed

The U.S. Department of Labor has announced plans to significantly alter its overtime regulations. The Fair Labor Standards Act (FLSA) requires most employers to pay their employees one and a half times their usual pay for time worked above 40 hours a week. The FLSA also exempts certain employees from overtime requirements—principally executives, administrative and professional employees, as well as salesmen who work outside the office. The FLSA charges the Department of Labor with defining these categories through regulation. Under the existing regulations, employers must pay overtime to all hourly workers. Employers must also pay overtime to salaried employees who either earn less than a certain amount (the salary test) or do not have sufficiently advanced job duties (the duties test). Employers must track the hours of any salaried employee eligible for overtime. The Obama Administration has proposed significantly increasing the salary test from $455 a week ($23,660 a year) to $970 a week ($50,440 a year). Employers would have to track the hours and pay overtime to any salaried employee making less than this amount—no matter how advanced their job duties.

Calculating Regular Rate Of Pay

  1. If you are paid on an hourly basis, that amount is the regular rate of pay.
  2. If you are paid a salary, the regular rate is determined as follows:
  • Multiply the monthly remuneration by 12 (months) to get the annual salary.
  • Divide the annual salary by 52 (weeks) to get the weekly salary.
  1. Divide the weekly salary by the number of legal maximum regular hours (40) to get the regular hourly rate.
  2. If you are paid by the piece or commission,either of the following methods may be used to determine the regular rate of pay for purposes of computing overtime:
  • The piece or commission rate is used as the regular rate and you are paid one and one-half this rate for production during the first four overtime hours in a workday, and double time for all hours worked beyond 12 in a workday; or
  • Divide your total earnings for the workweek, including earnings during overtime hours, by the total hours worked during the workweek, including the overtime hours. For each overtime hour worked you are entitled to an additional one-half the regular rate for hours requiring time and one-half and to the full rate for hours requiring double time.
  1. A group rate for piece workers is an acceptable method for computing the regular rate of pay. In using this method, the total number of pieces produced by the group is divided by the number of people in the group, with each person being paid accordingly. The regular rate for each worker is determined by dividing the pay received by the number of hours worked. The regular rate cannot be less than the minimum wage.
  2. If you are paid two or more rates by the same employer during the workweek, the regular rate is the “weighted average” which is determined by dividing your total earnings for the workweek, including earnings during overtime hours, by the total hours worked during the workweek, including the overtime hours. For example, if you work 32 hours at $11.00 an hour and 10 hours during the same workweek at $9.00 an hour, your weighted average (and thus the regular rate for that workweek) is $10.52. This is calculated by adding your $442 straight time pay for the workweek [(32hours x $11.00/hour) + (10 hours x $9.00/hour) = $442] and dividing it by the 42 hours you worked.

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