Are You Owed Overtime Pay?

California overtime provisions apply to all California employers, residents, as well as nonresidents who perform work in California and for California based employers.

If you work unauthorized overtime, your employer is still obligated to compensate you for it. An employer, however, is permitted to discipline you for violating the employer’s policy prohibiting overtime work without prior authorization.  You are entitled to overtime compensation if your employer knew or should have known that you worked overtime.  An employee cannot prevent an employer from knowing about unauthorized overtime and then request overtime pay.  An employer must be given an opportunity to obey the law.

If you believe that you are owed overtime pay, it may be a good idea to notify your employer, preferably in writing, that you are owed unpaid wages.  By remaining silent,  you risk not being paid at all.

Overtime rate: Employers must pay one and half times an employee’s “regular rate” if he or she works over 40 hours per week or more than 8 hours per day.  An employer must pay double the regular rate for work in excess of 12 hours per day.

Employees Who are Exempt from Overtime: Executive, administrative, and professional employees are generally exempt from overtime requirements.

Executive employees: An executive employee is someone who is engaged in managing the enterprise or a department or subdivision.  An executive regularly directs the work of at least two or more individuals and has the authority to hire and fire.

Administrative employees: An administrative employee is engaged in duties that directly relate to management policies or general operations of the enterprise as opposed to a “production employee” whose primary duty is to produce goods or services that the employer provides.

For example: An insurance company claims representative who handles auto and homeowner insurance claims is a “production employee” entitled to overtime pay because he or she is primarily engaged in providing services, e.g., claims adjusting.  On the other hand, a Human Resources Manager, who is responsible for implementing employer policies may be exempt from overtime pay.

Professionals: For purposes of this analysis, a professional is someone who is engaged an occupation commonly recognized as a learned or artistic profession such as teaching.

Moreover, to qualify for any of these exemptions, an employee must:

  • Primarily (more than 50% of the time) engage in duties that meet the test of the exemption as established by relevant IWC wage orders;
  • Customarily and regularly exercise discretion and independent judgment; and
  • Earn a monthly salary equal to no less than twice the state minimum wage for full-time employment.

The foregoing is a general overview of the law.  There are additional specific rules that apply to particular professions.  For example, nurses who are engaged in the practice of nursing do not fall in the professional exemption.  Other types of nurses (e.g., certified nurse midwives, nurse anesthetists and certified nurse practitioners) are exempt from overtime.

Other employees who may or may not fall into the above categories are exempt from overtime requirements by specific IWC Orders include but are not limited to:

  • movie projectionists;
  • certain broadcasting industry workers;
  • taxicab drivers and certain airline employees;
  • outside salespersons;
  • state and local government employees;
  • members of employer’s family;
  • employees licensed under the Fish & Game Code;
  • live-in employees in substance abuse alternative housing;
  • student nurses;
  • carnival ride operators;
  • certain employees who receive sales commissions

Notably, you are not automatically exempted from overtime pay simply because your employer pays you a salary, a piecemeal rate, or has misclassified you as an independent contractor.  The title of your position is  also not determinative.  Even if you were initially properly classified as non-exempt, an employer might waive and/or loose the exemption by making improper deductions from your salary.

Whether you are truly exempt, is a fact intensive inquiry that should be addressed by an employment law attorney.

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