OVERTIME VIOLATIONS IN CALIFORNIA

A 50-hour work week or a 12-hour day can be tough. The upside that keeps many people working through those long hours is the promise of overtime pay—the higher rate California workers must be paid when they’ve worked more than eight hours in a day, more than 40 hours in a week, or on the seventh consecutive day.

Both the federal Fair Labor Standards Act and California Labor Code §510 protect workers’ right to overtime pay. Unfortunately, many California employers ignore these requirements, or find crafty ways to mislead employees into believing that they are not entitled to increased rates for overtime work. Although California has some of the most extensive employee protections in the country, violations are rampant. There are more overtime violation settlements in California than in any other state, and not being properly compensated for overtime is one of the most common problems our clients report.

If you believe that you have not been fairly compensated for overtime in California, we can help. Fighting for employee rights is all we do, and we have recovered millions of dollars for California workers.

California Overtime Law  

Federal law requires only that eligible workers be paid 1.5 times their regular rate of pay for any hours worked in excess of 40 in one week. The California Labor Code goes much further. With limited exceptions, California law requires an employer to:

  •         Pay 1.5 times the employee’s regular rate of pay for any hours worked in excess of 40 in a week
  •         Pay 1.5 times the employee’s regular rate of pay for any hours worked in excess of eight in a day, regardless of the number of hours worked in a week
  •         Pay 1.5 times the employee’s regular rate of pay for any hours (up to eight) worked on the seventh day the employee works in a week
  •         Pay twice the employee’s regular rate of pay for any hours worked in excess of 12 in a day
  •         Pay twice the employee’s regular rate of pay for any hours worked in excess of eight on the employee’s seventh work day of the week

Under some circumstances, employers may create alternative work schedules, such as four 10-hour days per week, without paying overtime for the additional two hours per day. But, the employer can’t just decide to create this type of schedule. California law sets forth specific conditions, which generally include worker approval through a secret ballot or collective bargaining.

Exceptions

Certain California employees are not entitled to overtime pay, or may have different overtime rules. Some examples of employees who may be classified as “exempt,” and therefore not legally entitled to overtime pay under California law include:

  •         Executives and administrators
  •         Professionals
  •         Outside salespersons

Agricultural workers are subject to different regulations.

Payment for Overtime Hours

With increasingly automated modern payroll systems, employees are often paid overtime on their regular paychecks, at the same time they are paid for straight wages during the pay period. However, California law allows the employer to pay overtime wages at any time on or before the payday for the next regular payroll period.

Common Ways Employers Cheat Workers of Overtime Pay

The overtime pay rules are generally straightforward, and it’s easy for most employers to know exactly when overtime pay rates are required. But, many employers cheat employees of overtime pay. These dishonest employers count on employees not understanding their rights, or create an environment that makes workers afraid to speak up.

Understanding your rights and seeing past common misconceptions about overtime pay puts the power back in your hands.

Some of the most common ways we see employers illegally avoiding overtime pay include:

Misclassifying the employee as exempt

Many employers try to skirt the law, thinking that putting employees on salary and handing out supervisory titles will protect them from paying overtime. But, exemption categories are strictly defined and many salaried and supervisory employees are entitled to overtime pay.

Misclassifying the employee as an independent contractor

Independent contractors aren’t entitled to overtime pay, and also lose many other employee protections, such as workers’ compensation and unemployment coverage. Some businesses opt to classify workers this way to save money, but both California law and the Internal Revenue Service set forth specific requirements for classification as an independent contractor. Employees who have been misclassified as independent contractors may have other claims in addition to overtime violations.

Excluding time worked off the clock

California employers are required to pay for all required on-site time, including security checks, changing into gear, and traveling within the work day. This time is included in hours worked for the day and week, but some employers attempt to avoid overtime pay and even cheat employees of straight time pay by not recording or compensating for this time.

Not counting rest periods toward hours worked

Though the employee isn’t technically working, legally-mandated paid rest breaks on the employer’s premises or work site must be included in the hours worked calculation for overtime compensation purposes.

Not paying overtime to commission-only or piece-work employees

Alternative pay structures such as pay-per-piece or commission-based compensation do not excuse employers from compliance with wage and hour laws.

Creating a culture that pushes employees to work off the clock

One common way employers attempt to avoid paying for overtime is to declare “no overtime,” knowing that it will take longer than eight hours to complete a day’s tasks. This leaves the employee faced with the choice of insisting on overtime against the employer’s rules or leaving his or her job undone. Many, fearing that they will be fired, simply record eight hours of work and keep working.

Modifying time cards

Some employers go further than discouraging employees from accurately recording hours worked and make changes after the fact, cheating workers of both overtime compensation and straight pay for those extra hours.

Holding unpaid meetings and training sessions

California employees must be compensated for every hour worked. And, those hours are included in overtime calculations, even if they fall outside the employee’s regular duties. By treating meetings and training sessions as non-work events, employers cheat employees of pay for that time and of overtime that might result from the additional hours.

Improperly calculating regular rate of pay

Overtime pay is calculated by multiplying the employee’s regular rate of pay by 1.5 or 2. When an employee works for one hourly wage, the calculation is simple. But, for employees who perform different functions at different rates, work on salary, or work on an alternative pay structure like pay-per-piece, employers may fudge calculations to reduce the amount due.

You Can Fight Back

Cheapskate employers bank on employees being uninformed or afraid to fight back. But, California law provides powerful worker protections. If you believe that your employer is miscalculating hours or overtime compensation or has misclassified you as exempt, your first steps should be:

  •         Following company procedures for raising the issue with Human Resources or your supervisor
  •         Carefully documenting everything, including:

o   Notes from any conversations, including dates, times, locations and participants

o   A careful record of hours actually worked, ideally created in real time

o   Screenshots of texts or other digital messages

o   Photographs of altered time cards

o   Check stubs or screenshots of online payroll records

Make sure you behave professionally throughout this process. It can be frustrating, and it’s natural to be angry, but you don’t want to distract from the real issue with inappropriate actions or give your employer a legitimate reason to discipline or fire you.

Talk to an Experienced Employment Attorney

Whitehead Employment Law has recovered millions of dollars for California workers, in both individual lawsuits and class action cases. We understand the challenges California workers face when employers don’t play fair, and we want to make it as easy as possible for you to get fair compensation. We offer free consultations and work on a contingency basis, so expense will never be an obstacle to fighting back.

Talk to us at 949-936-4001 or fill out the contact form below.

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