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Overtime - Frequently Asked Questions - FAQ
California has very strict overtime laws. Your employer has the burden of proof in establishing that you are properly categorized as “exempt” from receiving overtime pay. The following questions and answers are under California law. There may be narrow exceptions to the general rules discussed below.
Should I be Paid Overtime?
How important are my actual job duties? Your actual job duties are usually the most important factor in determining if you are properly classified as exempt from overtime. Your actual day-to-day job duties are usually the most important factor in determining if you are exempt from overtime. If you spend more than 50% of your time performing non-exempt duties, then you should probably receive overtime. Contact me if you think that you have been improperly denied overtime.
What if I am paid a salary?
The sole fact that an employee is paid a “salary” does not mean the employee is exempt from overtime. Your actual day-to-day job duties are usually the most important factor. Contact me if you think that you have been improperly denied overtime because your employer says you are on “salary."
What if I have a high-level job title?
An employee’s job title (or written job description) does not solely determine if you are exempt from overtime. This is especially true for “Managers” and “Assistant Managers’ working in the retail industry. Your actual day-to-day job duties are usually the most important factor.Contact me if you think that you have been improperly denied overtime because of your job title (or written job description).
OVERTIME & DOUBLETIME
When should I be paid overtime?
If you are non-exempt and work more than 8 (but less than 12) hours in a day, your employer should pay you overtime. Do you work more than 8 hours in a day? If you are eligible or overtime, you should receive time-and-one half (1.5) your regular hourly rate. For example, if you earn $10.00 per hour, your overtime rate would be $15.00 per hour. Contact me if you think that you have been improperly denied overtime.
When should I be paid doubletime?
If you are non-exempt and work more than 12 hours in a day, your employer should pay you doubletime. For example, if you earn $10.00 per hour, your doubletime rate would be $20.00 per hour. Contact me if you think that you have been improperly denied doubletime.
What if I work more than 7 days in a row?
If you are non-exempt and work more than 7 days in a row, for the first 8 hours on the seventh consecutive day worked in a workweek, you are entitled to overtime. After 8 hours on the seventh consecutive day worked in a workweek, you are entitled to doubletime. Contact me if you think that you have worked more than 7 days in a row and have been improperly denied overtime and/or doubletime.
Should I be paid for “unauthorized” overtime?
Yes. Your employer is required to pay you for all time worked. However, your employer may discipline you for violating the company’s policy regarding “unauthorized” overtime. Contact me if you were denied overtime pay because your employer claimed it was “unauthorized.”
Can my employer require me to work overtime?
Yes. Your employer has the right to set your work schedule..
Can my employer avoid paying me overtime because there is an “alternative workweek” agreement in place?
It depends. There are very specific conditions that must be met for an “alternative workweek” schedule (usually four 10-hour days) to be valid. Contact me if your employer claims that there is an “alternative workweek” in place and you believe that it is improper.
Can I waive my right to receive overtime?
No. Your employer is required to pay all overtime wages. However, please see the discussion on the “alternative workweek” above.
MEAL & REST BREAKS
When should I receive a meal break?
If you are non-exempt, you are entitled to a 30-minute, duty-free meal period for every 5 hours worked. If your employer fails to provide you with this break, the employer must pay you one additional hour of pay. Contact me if you think that you have been improperly denied your meal breaks.
When should I receive a rest break?
If you are non-exempt, you are entitled to a paid10-minute, duty-free rest period for every 4 hours worked. If your employer fails to provide you with this break, the employer must pay you one additional hour of pay. Contact me if you think that you have been improperly denied your rest breaks.
STATUTE OF LIMITATIONS & OTHER PENALTIES
What is the statute of limitations on unpaid overtime claims?
Generally, four years from the date you file your complaint with a proper court or government agency. Contact me if you think you have a valid claim for unpaid overtime.
In addition to my unpaid wages, will I be able to recover additional penalties?
Yes. Depending on the circumstances of your case, you may be able to recover waiting time penalties (up to one month’s wages), penalties for missed meal and rest periods (one hour per missed meal or rest period), interest, and attorney’s fees. Contact me if you think you have a valid claim for unpaid wages and penalties.
POTENTIAL OVERTIME EXEMPTIONS
There are several exemptions from overtime. Here are four of the most common:
Administrative Exemption
This exemption applies to employees who perform office and/or non-manual work that is directly related to the management policies or general operation of the employer’s business and/or customers. To be properly applied, the employee must spend at least 50% of their time exercising discretion and independent judgment on matters of significance; perform their work under general supervision and apply their specialized experience, knowledge, or training. The employee must be fulltime and be paid at least double the minimum wage. The administrative exemption is often wrongly applied to administrative assistants and office clerks. Contact me if you believe you are misclassified under the administrative exemption.
Executive Exemption
This exemption is often applied to classify managers as exempt from overtime. To be properly applied, the employee must spend at least 50% of their time performing managerial duties. This includes managing a location or department; supervising at least two fulltime employees; having the ability to hire, fire, and discipline employees (or make recommendations on these issues that are given great weight); being able to regularly exercise a high level of independent judgment on matters of importance. The employee must be fulltime and be paid at least double the minimum wage. Contact me if you believe you are misclassified under the executive exemption.
Professional Exemption
This exemption applies to employees required to advanced specialized education and/or licensing from the state. Jobs often covered under this exemption include doctors, dentists, lawyers, schoolteachers, architects, and engineers. Contact me if you believe you are misclassified under the professional exemption.
Computer Software Professional Exemption
This exemption applies to employees primarily engaged in highly complex computer software issues. Under this exemption, the employee must earn more than $41.00 per hour. Many IT jobs do not qualify for this exemption. In many cases the following types of jobs are non-exempt (and should be paid overtime): Database Administrator; Help Desk; Desktop Support; Network Administrator; Network Application Engineer; Network Engineer; Server Engineer; Systems Administrator; Systems Analyst; and Systems Engineer.Contact me if you believe you are misclassified under the computer software professional exemption.
DO I HAVE A CASE?
1. Are you exempt?
a. What are your job duties?
b. Describe a typical day at work.
c. Do you supervise employees? If yes, how many?
d. Do you have the authority to hire/fire/discipline employees
e. Does your job require any special education or training?
f. Do you make policies that have a wide impact for your employer?
g. Do you make decisions that have a substantial financial impact on your employer?
h. Do you have a written job description? Is it accurate?
i. Will your coworkers or customers be able to verify your job duties?
j. If your employer says you are exempt, what explanation/justification have you been given?
k. Are there other employees with your job that you believe are misclassified? If the number is substantial, your case could be filed as a class action lawsuit.
2. What are your damages?
a. How many hours of unpaid overtime/doubletime have you worked?
b. How are your hours recorded (e.g., time clock, timecard, computer program, calendar, etc.)?
c. How often are you denied a duty-free 30-minute meal break?
d. How often are you denied a duty-free 10-minute rest break?
e. What is your hourly rate of pay?
f. Do you have copies of your pay stubs?
g. Are you paid at least twice a month?
Contact me to tell me about your potential case. Your answers will be treated confidentially. In your email, please state how the factors discussed above apply to your potential case.
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