Overtime
- When am I entitled to receive overtime pay?
- What constitutes “hours of work” for purposes of overtime?
- When would I be entitled to daily overtime?
- When would I be entitled to weekly overtime?
- What is the rate of pay for overtime work?
- If I work a sixth or seventh consecutive day, am I entitled to receive overtime pay?
- Am I entitled to overtime for working holidays or on Saturday or Sunday?
- Are paid holidays considered “hours worked” under the law?
- Should I receive compensation for waiting or standby time?
- Should I be compensated for my time traveling to and from work?
- The employer is always rounding down my starting and stopping times. Is that lawful?
- Who is responsible for keeping time records?
- I work four days per week at 10 hours per day. However, I don’t receive any daily overtime. Is that lawful?
- Can employers establish an alternative work schedule requiring employees to work in excess of ten hours per day without receiving daily overtime?
To learn more about your rights, view our Employment Law page, or contact us for more information.
When am I entitled to receive overtime pay?
An employer’s obligation to pay overtime arises when an employee works more than the hours prescribed in the federal and state wage and hour laws. Unionized employees may also be entitled to overtime pay under the terms of a collective bargaining agreement. The rules regarding overtime pay for non-union employees are quite complex and entitlement to overtime pay under state or federal law may depend upon several factors such as whether the employee works in the public sector or for a private employer, or whether the employee is considered exempt under the law. Generally speaking, employees may be entitled to daily overtime, weekly overtime, or both.
What constitutes “hours of work” for purposes of overtime?
The amount of overtime compensation an employee should receive for working cannot be computed without first knowing the number of hours worked. The definition for “hours worked” under state law includes all the time during which an employee is subject to the control of an employer. Furthermore, if an employee is “suffered or permitted” to work, even though they may not be instructed or requested to do so by their employer, that time would be considered “hours worked.” If your employer knows or has reason to believe you are performing work, this should be included in your compensable time as “hours worked.” This principle applies even to work done off the job site such as at home.
When would I be entitled to daily overtime?
Under California law, most private sector employees are entitled to receive overtime pay for all time worked in excess of eight hours per day. However, there are several exceptions to this rule. For example, various categories of employees are considered entirely exempt from overtime pay such as executive, administrative, and professional employees. Other employees may have only limited rights to daily overtime, such as those who work in certain agricultural occupations. Public sector or governmental employees are not entitled to daily overtime.
When would I be entitled to weekly overtime?
Under both federal and state law, most non-exempt employees are entitled to overtime pay for all time worked in excess of 40 hours per week. Once again, there are some exceptions to this general rule such as for certain agricultural employees who are not entitled to this protection.
What is the rate of pay for overtime work?
In most cases, state and federal law requires compensation for overtime work at time and one-half the employee’s regular rate of pay. However, there are certain circumstances where the overtime rate may be higher. For example, under California law, an employer must pay double-time the employee’s regular rate of pay for all time worked in excess of 12 hours per day for most employees.
If I work a sixth or seventh consecutive day, am I entitled to receive overtime pay?
While federal law does not require automatic overtime for work performed on a sixth or seventh day of a work week, an employee is entitled to overtime for working in excess of 40 hours during the work week. Therefore, if you are averaging six, seven or eight hours of work per day, you will exceed 40 hours of work by the sixth or seventh day during the work week. In addition, state law requires that every nonexempt employee be paid overtime for the first eight hours of work on the seventh consecutive day and double-time for all time worked in excess of eight hours on the seventh day.
Am I entitled to overtime for working holidays or on Saturday or Sunday?
Not necessarily. Hours worked on holidays, Saturdays and Sundays are treated like hours worked on any other day of the work week under both state and federal law. Therefore, the question is whether the nonexempt employee has worked in excess of eight hours during one of those days or 40 in a work week during which one of these days fall. However, union employees frequently work under contracts which provide premium pay for hours worked on a holiday or on a weekend day.
Are paid holidays considered “hours worked” under the law?
If an employee is given time off with pay for certain holidays, these hours are not counted as “hours worked” for overtime purposes under state law. For example, employees may receive eight hours of pay for a holiday occurring on a Monday without working that day. If the employee works eight hours per day for the next five days (Tuesday through Saturday), the total hours “worked” that week would not exceed 40 even though the employee received 48 hours of pay (including the eight hours of holiday pay). Because overtime is based on “hours worked” rather than hours paid, no overtime would be owed for this work week in the absence of an agreement to the contrary.
Some union contracts establish policies that provide that paid time off for holidays, vacation days or sick days will be considered as hours worked for purposes of computing overtime.
Should I receive compensation for waiting or standby time?
Even if you are not performing productive work for the benefit of your employer, you may be entitled to compensation for waiting or standby time. If an employee is on duty, even though he or she may have essentially no work to perform, all such waiting time is deemed hours worked. If an employee is off duty on “standby,” the time may constitute hours worked if the employee is under the control of the employer and required to remain immediately available such that the individual cannot use his or her time effectively for their own purposes. Some of the factors which may be considered to determine whether the standby time is compensable include whether there are significant geographical or response-time restrictions on the employee, and whether the employee can effectively engage in personal activities during the standby time.
Should I be compensated for my time traveling to and from work?
Generally speaking, the time spent traveling to and from a work site is not compensable as “hours worked.” Thus, employees do not receive pay for normal commuting time to and from the job site. On the other hand, employees are entitled to compensation for travel time if an employee is subject to the control of his employer in conjunction with that travel time. For example, if an employer requires an employee to meet at a designated place in order to take a particular bus to work and the employer prohibits the employee from taking their own transportation, the time spent waiting for and traveling on the bus would be considered hours of work. Of course, travel time during the work day must also be counted as hours worked if the travel is related to the employee’s job.
The employer is always rounding down my starting and stopping times. Is that lawful?
No. In computing hours of work, an employer may “round off” an employee’s starting time and stopping time to the nearest five minutes, or six minutes (1/10th of an hour) or some other increment. However, this practice must go both ways by rounding up as well as rounding down so that the rounding averages out over a period of time. If the employer consistently rounds down, the practice will fail to adequately compensate an employee for all the time actually worked.
Who is responsible for keeping time records?
While employees should keep an accurate record of all their hours of work, ultimately the employer has an obligation to maintain accurate time records. These records must be maintained and stored for several years. Although employers may utilize electronic time card systems, they must ensure that the information regarding time worked for each employee is accurate and, upon request, provide a legible printed copy of those records to the employee or the California Division of Labor Standards Enforcement.
I work four days per week at 10 hours per day. However, I don’t receive any daily overtime. Is that lawful?
While the five day work week remains the most common schedule for employees in California, the Labor Code authorizes “alternative work schedules” that include work in excess of eight hours a day at straight-time pay. One of the most common alternative work schedules, often called “four-tens,” consists of four ten-hour work days in a work week.
Alternative work schedules cannot be established unilaterally by the employer. Rather, the employer must propose the alternate work schedule and discuss the impact of the proposed arrangement on employee’s wages, hours and benefits at an employee meeting held at least 14 days prior to an election. Finally, at least two-thirds of the affected employees in the unit must vote in favor of the arrangement before it is implemented. Employees have the right to repeal an alternative work schedule by petitioning for another secret ballot election. A union and its members can agree to any alternative work week schedule, including the four-tens schedule.
Can employers establish an alternative work schedule requiring employees to work in excess of ten hours per day without receiving daily overtime?
Under California law, essentially all nonexempt employees must be paid daily overtime for all hours worked in excess of 10 hours per day. The one exception to this rule allows qualified employees in the healthcare industry to work straight time schedules of 12 hours in a day where specific standards are met.
