According to the California Labor Code, an employer must pay 1½ times the employee’s regular wage after 8 hours worked in a day and after 40 hours worked in a week for all non-exempt employees. An employer must also pay employees 2 times the regular wage after 12 hours worked in a day. Any overtime lawyer will tell you that this is the law whether you are paid by the hour or by piece-rate.
Here is an example of how easy it is for employees to accrue unpaid overtime. Let’s say Jane Doe works for Company XYZ for the minimum wage (currently CA’s minimum wage is $10/hr). Every day, she shows up and clocks-in at 9:00am and clocks out at 5:45pm. But she only takes a 20 minute lunch break. Each day, she’s on the clock for eight hours and twenty five minutes. So each day, she accrues 25 minutes of unpaid overtime. If you add up three years of unpaid overtime wages, it can amount to a substantial number!
Common Overtime Employee Issues
Cant Waive Overtime – Employees cannot waive overtime. Employers must pay it. It is mandatory for all hours worked after 8 hours in a day and 40 in a week.
Exempt Executive, Administrative and Professional Employees – “White collar” workers employed in a executive, administrative, computer software professional, or professional capacity are exempt from overtime and minimum wage requirements. The law on whether an employee fits into one of these categories is extremely complex. If you have a question as to whether you should be non-exempt and thus owed overtime call an employment lawyer.
“Off the Clock” Work – Employers must compensate employees for “off-the-clock” work (before punching in or after punching out on a time clock) if the employers knew or should have known that the employees were working those hours. A competent overtime lawyer can show that employers knew that the employee was working off the clock but disregard it because it is finically beneficial to ignore such behavior.
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Piece-Rate Workers are Still Owed Overtime – Employers who pay their employees by piece, rather than by hour, must still pay their employees overtime for all hours in excess of 8 hours in a day or 40 hours in a week. This is especially prevalent in the construction industry where certain trades commonly pay a piece rate.
Rest Periods – Rest periods are considered part of working hours. Thus, they are compensable, meaning they should be included in the time worked for each day. Thus, if you worked for 8 hours and 20 minutes on Monday, and took two 10-minute rest breaks throughout the day, you are owed 8 hours of regular pay and 20 minutes of overtime. Meal breaks, on the other hand, generally are not a part of working hours if the employee is relieved of all duties.
“On Call” Time – Under California law, on-call waiting time is compensable if it is spent primarily for the benefit of the employer and its business, which depends on two considerations: the parties’ agreement, and the degree to which the employee is free to engage in personal activities.
Travel Time – In California, time spent traveling to and from work generally is not compensable or counted toward hours of work under state law. But travel time during work or otherwise at the employer’s direction counts as hours worked. If your employer forces you to travel during working hours, and refuses to pay you for it, it would be wise to speak with an overtime attorney.
Unions – State overtime law does not apply to employees covered by a collective bargaining agreement that provides an hourly rate at least 30% more than the minimum wage and “premium” wage rates for overtime work.
“Necessary” For Employee to Work Long Hours Myth – For purposes of computing overtime, it is irrelevant whether it was necessary for the employee to work long hours in order to complete an assignment, or whether another employee could have done the work in less time. All that matters is whether the employee worked with the actual or constructive knowledge of his employer.
What Will an Overtime Lawyer Do to Recover Your Unpaid Wages?
An overtime lawyer will first collect various documents from you. This will primarily include:
- Pay stubs
- Employment agreement
- Arbitration agreement (if any)
- Other evidence to show the employee was working beyond 8 hours in a day or 40 in a week.
Then the overtime lawyer will speak with you and crunch the numbers. Once he or she has come up with a rough idea of how much unpaid overtime you are owed, then he or she can advise you what to do next. If you’re owed a substantial amount of money, and the claims look fairly straightforward to prove, the lawyer will likely want to take your case. If you’re only owed a few thousand dollars, or your claim is difficult to prove, the overtime attorney will probably refer you to the Department of Industrial Relations (also known as the Labor Board) or tell you to find another attorney.
If the attorney takes your case he or she will likely take the following steps:
- Send a demand letter to the employer explaining the violation and how much you’re owed. He or she will also evaluate whether to file the claim as a class action or to keep it as an individual action.
- If no settlement is reached, file the lawsuit in state or federal court.
- Conduct discovery, obtain documents, depose witnesses, and collect as much evidence as needed to prove your case.
- Mediate the case in an effort to settle.
- If settlement fails, the attorney will take your case to trial.
If you’ve been deprived overtime, contact our labor lawyer immediately. While our office is located in Orange County, we serve clients throughout California. If you suspect your employer has intentionally or unintentionally failed to pay overtime wages to you, contact overtime lawyer Branigan Robertson for a free consultation.