Most California non-exempt employees, including most piece-rate employees, are entitled to time and half and/or double time pay for the daily overtime hours they work. In some cases, misclassified exempt employees may also be entitled to these overtime wage rages. Notwithstanding the fact that California law has a daily overtime pay requirement, many employers incorrectly pay overtime on solely a weekly basis, if at all. Whether such the employer's conduct intentional or merely mistaken is of no consequence.
Employees will nonetheless be entitled to recover all unpaid overtime incurred within the statute of limitations period (generally three or four years) and, in many cases, overtime penalties from the employer, as well as, interest, reasonable attorneys' fees and costs of suit.
Time and a Half
In California, eight hours of labor constitutes a day's work. Therefore, generally any work in excess of eight hours in one workday and any work in excess of forty hours in one workweek must be compensated at one and one-half times the regular rate of pay (time and a half).
Similarly, the first eight hours worked on the seventh day of work in any one workweek must also generally be compensated at the rate of no less than one and one-half times the regular rate of pay (time and a half).
Generally, any work in excess of twelve hours in one workday must be compensated at the rate of no less than twice the regular rate of pay (double time). Any work in excess of eight hours on any seventh day of a workweek shall also be compensated at the rate of no less than twice the regular rate of pay (double time).
Employees Cannot Waive Right to Overtime Pay
An employer cannot require its employees to waive their right to overtime wages. Any agreement (verbal or written) under which an employee does not receive overtime pay despite working overtime hours is void and unenforceable. The employee will still be entitled to recover the unpaid balance of the full amount of overtime pay owed from the employer, including interest, reasonable attorneys' fees and costs of suit.
Some Limited Exceptions to the Payment of Overtime
Employees working under a proper Alternative Workweek Agreement that have been approved by the California Labor Board and which complies with California law may lawfully waive their right to some overtime pay. If you have questions about whether your Alternative Workweek Agreement is valid, please contact Duvel Law, APC., for further information.
Note: In California, some industries may lawfully commence daily overtime pay at ten hours rather than the usual eight hours and some type of employees may not be entitled to overtime pay at all. These exceptions are extremely limited.
Compensating Time off in Lieu of Overtime Pay
In lieu of overtime pay, a non-exempt employee may receive compensating time off at a rate of not less than one and one-half hours for each hour of employment for which overtime pay would have been required by law. If an hour of employment would otherwise be compensable at the double time rate, then the employee may receive compensating time off commensurate with the double time rate. (See below example)
Example: A non-exempt employee works 13 hours in one workday and elects in writing to receive compensating time off for all 5 of the overtime hours worked. The employee must receive 8 total hours off (6 hours of time off for hours 8-12 and 2 hours of time off for hour 13).
Caveat: There a several additional conditions and restrictions, including the existence of a written agreement, that apply to compensating time off.
Employees who have complained about the legitimacy of an employer's overtime pay policy and who have suffered adverse consequences as a result, may also have a separate claim of retaliation which may make available the following additional damages: Compensatory damages, emotional distress damages, and punitive damages.