In California, the general overtime provisions are that a nonexempt employee shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless he or she receives one and one-half times his or her regular rate of pay for all hours worked over eight hours in any workday and over 40 hours in the workweek (or double time as specified below). Eight hours of labor constitutes a day’s work, and work performed beyond eight hours in any workday or more than six days in any workweek requires the employee to be compensated for the overtime at not less than:
- One and one-half times the employee’s regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and
- Double the employee’s regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.
There are, however, a number of exemptions from the overtime law. An “exemption” means that the overtime law does not apply to a particular classification of employees. There are also a number of exceptions to the general overtime law stated above. An “exception” means that overtime is paid to a certain classification of employees on a basis that differs from that stated above. In other words, an exception is a special rule.
If an employee works unauthorized overtime is the employer obligated to pay for it?
Yes, California law requires that employers pay overtime, whether authorized or not. However, an employer can discipline an employee if he or she violates the employer’s policy of working overtime without the required authorization. Nonetheless, California’s wage and hour laws require that the employee be compensated for any hours he or she is “suffered or permitted to work, whether or not required to do so.” California law says that “suffer or permit” means work the employer knew or should have known about. Therefore, an employee cannot deliberately prevent the employer from obtaining knowledge of the unauthorized overtime worked, and come back later to claim recovery. But at the same time, an employer has the duty to keep accurate time records and must pay for work that the employer allows to be performed and to which the employer benefits.
Is a bonus included in the regular rate of pay for purposes of calculating overtime?
Yes, if it is a nondiscretionary bonus. A nondiscretionary bonus is included in determining the regular rate of pay for computing overtime when the bonus is compensation for hours worked, production or proficiency, or is paid as an incentive to remain employed by the same employer. Discretionary bonuses paid as gifts at a holiday or other special occasion, such as a reward for good service, which are not measured by or dependent upon hours worked, production or efficiency, are not included for purposes of determining overtime rate of pay.
Are salaried employees entitled to overtime?
It depends. A salaried employee must be paid overtime unless they meet the test for exempt status as defined by federal or state laws regulating wages, hours and working conditions.
Can an employer require an employee to work overtime?
Yes, in general an employer may dictate the employee’s work schedule and hours. Additionally, under most circumstances the employer may discipline an employee, up to and including termination, if the employee refuses to work scheduled overtime. However, an employer cannot discipline an employee for refusing to work on the 7th day in a workweek and is subject to a penalty for forcing an employee to give up a day of rest. An employee who is fully informed of their right to rest may freely decide not to take a day of rest.
Last week I worked Monday, Tuesday, Wednesday, Thursday and Saturday, eight hours each day. I was out sick all day on Friday. For the workweek I was paid 48 hours at my regular hourly rate. Am I entitled to eight hours of overtime pay?
No, you are not entitled to any overtime pay. Overtime is calculated based on hours actually worked, and you worked only 40 hours during the workweek. Another example of where you get paid your regular wages but the time is not counted towards overtime is if you get paid for a holiday but do not work that day. In such a case, the time upon which the holiday pay is based does not count as hours worked for purposes of determining overtime because no work was performed.
Can I waive my right to overtime compensation?
No, California law requires that an employee be paid all overtime compensation notwithstanding any agreement to work for a lesser wage. Therefore, such an agreement or “waiver” will not prevent an employee from recovering the difference between the wages paid the employee and the overtime compensation he or she is entitled to receive.