Overtime in California

Overtime pay is 1.5 times an employee’s regular rate of pay. Not all employees are eligible for overtime, but most employees are eligible for overtime.

In California, eligible employees are entitled to overtime in three scenarios. (Separate rules apply to domestic workers and some farm workers.)

1. An eligible employee should receive overtime pay after working 8 hours in a single day.

2. An eligible employee should receive overtime after working 40 hours at their regular rate of pay in a single week.

3. An eligible employee should receive overtime for the seventh day of work in a single workweek. (Most employers’ workweeks are from Sunday through Saturday, but an employer can also set a workweek from Monday to Sunday or any other continuous seven-day period).

Eligible employees at times are also entitled to “double time.”  Double time is 2 times an employee’s regular rate of pay. In California, employees are eligible for double time pay in two scenarios.

1. An eligible employee should receive double time pay after working 12 hours in a single day.
2. An eligible employee should receive double time pay after working 8 hours on the seventh day of work in a single workweek.

In California, most employees are entitled to overtime pay, however there are some situations in which your employer does not need to pay overtime. If you fall into one of the categories below, your employer may not need to pay overtime.

• Employees who are directly employed by the city, county or state.
• Most employees who are in a union and covered by a collective bargaining agreement.
• Exempt professionals, administrators, and executive
• Taxicab drivers

• Certain “app-based” rideshare and delivery drivers
• Most truck drivers
• Employees who work for a parent, child, or spouse (you may still be eligible for overtime, if your parent/spouse/child runs a company that is not a sole proprietorship).

If you are an agricultural or domestic worker, you are entitled to overtime, however there are special overtime rules that apply to your workplace.

Additional limited exemptions are described at the Department of Labor Standards and Enforcement’s website.

That depends on the type of work you perform and the amount of your salary. If you are a non-exempt employee, you are entitled to overtime pay.

Exempt professionals, administrators, and executive employees are not entitled to overtime pay. But just because your employer labels you an “exempt” employee, does not mean you are one.

You can only be legally classified as an exempt employee in California if:

1. you spend the majority of your time doing exempt work, and

2. you are paid an annual salary that is at least twice the state minimum wage. In 2023, the minimum salary for exempt employees is $64,480.

For example, if you are working at an employer with 26 or more employees, in 2021 you would have to earn at least $58,240 (which is twice the minimum hourly wage of $14, for 40 hours a week over 52 weeks).

If you are not being paid a salary that is at least twice the California Minimum wage, you cannot be lawfully classified as an exempt employee. You may be entitled to overtime pay, even if your employer labels you as exempt.

Overtime laws do not apply to workers covered by a valid collective bargaining agreement (CBA) if all three of the following standards are met:

1. The CBA expressly provides for the wages, hours of work, and working conditions of employees; and

2. The CBA provides for premium overtime pay rates; and

3. The regular hourly rate of pay for the employees is not less than 30% more than state minimum wage. In 2023, your regular rate of pay under your CBA may not be less than $20.15 per hour.

If you are an employee covered by a CBA, and you believe you are not properly being paid for overtime, you should speak with your union steward.

No, because in this scenario, you have only worked for 8 hours. A 30-minute meal break does not count as paid time. A non-exempt employee who works a shift that lasts more than 5 hours is usually required to get a 30-minute meal break before the start of their fifth hour of work. Employers are not required to pay you while you are taking a meal break.

Even if you are paid by piece rate, commission, or a daily rate, if you are eligible for overtime, you must receive overtime compensation when you work more than 8 hours in a day, 40 hours in a week or work 7 days during a single workweek. If your company pays you a salary, and you are eligible for overtime, the company cannot use your salary to cover their obligation to pay you overtime.

Employers do not need to pay overtime to certain higher paid salaried workers—called “exempt” workers. However, most workers in California are entitled to overtime pay if they work more than 8 hours in a day, over 40 hours in a week, and/or 7 days in a row.

No. Your employer does need to pay you overtime if you work on a holiday. Some employers agree to pay their employees extra for working on holidays, but there is no law that says an employer must do so. If your employer has stated that overtime will be paid for time worked on holidays, that promise is enforceable, and you can file a claim with the Labor Commissioner to receive the money you are owed if you were not paid correctly.

No. If you work an 8-hour (or less) shift on your day off, and it does not lead to you working more than 40 hours in a workweek, you are not owed overtime. However, if you work a 5-day/40-hour week and coming in on your day off leads to you working more than a 40-hour workweek, you are owed overtime.

If you regularly work 6 days a week and your employer has you come in on your day off, you have worked a 7-day workweek and are entitled to overtime.

Yes. Your employer must pay you for your overtime, regardless of whether the overtime was previously authorized.

No. Overtime pay is a right that cannot be given up by you or by your employer. If your employer says it has a no overtime policy but allows you to work overtime hours anyway, you must be paid overtime rates for those hours.

If your employer tells you not to work overtime, and you do the work anyway, your employer can discipline (for example, suspend or even fire) you for doing that work. The employer must still pay you for the time worked, even though you might be disciplined.

You have the right to be paid overtime for every additional hour you work, even if you previously told your employer that you would work for a single rate. In other words, you cannot give up (“waive”) your right to overtime pay no matter what you say or do.

First, you need to determine the start and end of your workweek.  Employers are responsible for setting the workweek. The default workweek begins on Sunday and ends on Saturday, but your employer can set an alternative workweek so long as the workweek is not set in a manner designed to avoid overtime obligations. Below are a couple of examples:

• • Harry’s employer has set a Monday through Sunday workweek. Harry worked Monday through Saturday, and on Sunday, he worked 8 hours. Harry has worked a 7-day work week and is entitled to overtime pay.

• • Alicia’s employer has also set a Monday through Sunday workweek. Over the course of two workweeks, Alicia worked every day from the first Wednesday through the second Tuesday. For each of these seven days, she worked for 5 hours. She did not work any of the other days during these two weeks.Alicia is not entitled to overtime. She never worked more than 8 hours in a single day, and she never worked more than 40 hours in a single workweek. Alicia did work 7 days in a row, but she did not work 7 days in a single work week, because the employer’s workweeks were from Monday through Sunday. She worked 5 days during the first workweek, and 2 days during the second workweek.

After you have determined your workweek, count how many hours you worked each day. Most workers in California are entitled to 1.5 times their daily rate of pay, for:

• • Time worked over eight hours on a single day

• • The first eight hours worked on the seventh consecutive day in the same workweek

• • Time worked after you have worked 40 “regular” hours each week

Workers should get twice their normal rate, for:

• • Time worked over 12 hours each day

• • Time worked over 8 hours on the seventh consecutive day in the same workweek

You can usually figure out your regular hourly rate by dividing a weekly, monthly, or annual rate by the hours you worked during that time period. If you worked more than a 40-hour work week, divide your weekly rate by 40 hours or your yearly rate by 2080 hours (40 hours by 52 weeks).

Below are a couple of different scenarios to help explain these concepts.

• If you know your annual income, divide that number by 52 weeks, then (a) divide the answer by how many hours you work in a week, or (b) divide the answer by 40, if you worked over 40 hours a week.

• Jay makes $24,000 a year (before taxes), and on average he works 25 hours a week.

• $24,000/ 52 weeks =$461.54 a week
• $461.54/25 hours = $18.46

Jay makes approximately $18.46 an hour

• If you were promised a monthly wage, multiply that number by 12 months, then divide your answer by 52 weeks. Lastly either (a) divide the answer by how many hours you work in a week, or (b) divide the answer by 40, if you worked over 40 hours a week.

• Nora was promised $3,500 a month (before taxes), and on average works 50 hours a week.

• $3,500 x 12 months = $42,000 a year
• $42,000/52 weeks = $807.69 a week
• $276.92/40 hours = $ 20.19

Nora made approximately $20.19 an hour, and was entitled to get paid an additional $30.29 ($20.19 x 1.5) an hour for each hour she worked over 40 hours a week.

If you do not know exactly how many hours you worked, make your best estimate. Your employer has an obligation to maintain detailed records about your employment, you can amend your claim after receiving records from your employer. Legal Aid at Work offers a free template you can use to send your employer a records request letter.

Legal Aid at Work may be able to help calculate your wages owed through our wage claim clinics.

1. 1. Tell your employer that you believe you are entitled to overtime pay for work you have performed.  When you talk to your employer, you should include the exact dates on which you worked overtime and the hours that you worked.  If you have any documentation (such as a calendar or notebook) of the hours you worked, you should show it to your employer.

2. 2. Call Legal Aid at Work to get advice about your claim. Learn more about our clinics at https://legalaidatwork.org/clinics-and-helplines/.

3. 3. File a wage claim with the California Division of Labor Standards Enforcement (also known as the “Labor Commissioner”) to recover the wages you should have been paid. You can also go to court to collect your wages, but the Labor Commissioner’s process is easier for workers who cannot obtain a lawyer and there is no maximum amount you can claim. (If you go to Small Claims Court, the maximum is $12,500. If your claim is for more than $12,500, you can file a claim in Superior Court).

4. 4. File a report with the United States Department of Labor. The Department of Labor enforces United States overtime rules. Generally, United States law requires employers to pay overtime after 40 hours of work during a single work week. You can file a report online or call 1-866-487-9243.

To have the best chance of recovering the money you are owed try and keep your own written record of the hours you work and keep any paperwork (e.g. check stubs and timecards) that your employer gives you.

In addition to the wages you are owed, you can ask for liquidated damages:

Under California law, when an employee has not been paid for all hours worked, the employee can collect two types of damages.  First, the employee can collect the difference between the amount the employer paid him and the agreed upon rate as actual damages.  (If the agreed upon rate was below the minimum wage, the employee can collect the difference between the amount the employer paid him and the minimum wage as actual damages.)  Second, the employee can collect the difference between the amount the employer paid him and the minimum wage as “liquidated damages.”

For example, if an employer agreed to pay a worker $20 an hour, but paid the worker $10 an hour, and a minimum wage rate of $15 an hour applied, the employee could collect $10 an hour (the difference between the agreed upon rate and the amount actually paid) as actual damages, and an additional $5 an hour as “liquidated damages.”

If an employer agreed to pay a worker $160 a day (which is $20 an hour for an 8 hour day), and a minimum wage rate of $15 an hour applied, but the employer did not pay the worker any additional money when the employee worked ten hours in a single day, the employee could ask for $40 as damages, for the two hours they was not paid, and an additional $30 ($15 minimum wage by two hours) as liquidated damages.

If you no longer work for the employer who underpaid you, you can also ask for “waiting time penalties”:

California law allows the Labor Commissioner to penalize an employer who hasn’t paid an employee in full when he quits or is discharged.  These penalties, which go to the employee, can amount to up to 30 days of the daily wage you were entitled to under the law.

For example: Anna normally makes $16 an hour and works 5 hours a day. Anna was terminated on May 1, 2020, and as of August 1, 2020 she has not received the wages she is owed for her last two weeks of employment.

• $16 x 5 hours = $80 a day
• $80 x 30 days = $2,400 in waiting time penalties

Anna is owed $2,400 on top of the wages she was not paid. In this scenario, Anna has been waiting for longer than 30 days to receive her last paycheck, however waiting time penalties cap at 30 days.

Normally, three years. Through the Labor Commissioner, you can collect unpaid wages for work you performed up to three years before you file a claim.  If you go to court instead of the Labor Commissioner, you may be able to go back four years by claiming that your employer violated California’s unfair competition laws by not paying you the minimum wage.