Unpaid Overtime

Generally, unless exempt, if an employee works more than 8 hours in one day or 40 hours in one week, the employee is entitled to overtime compensation. California Labor Code section 510 provides that subject to certain stated exceptions: Eight hours of labor constitutes a day's work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. According to U.S. Department of Labor (DOL), an employer who requires or permits an employee to work overtime (OT) is generally required to pay the employee premium pay for such overtime work.

The DOL states that: "The overtime requirement may not be waived by agreement between the employer and employees. An agreement that only 8 hours a day or only 40 hours a week will be counted as working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, also will not impair the employee's right to compensation for compensable overtime hours that are worked."

The overtime rules apply whether the employer pays the employee an hourly wage or a salary. Employees may be entitled to overtime compensation even if they receive a salary. An employee paid on a salary basis must receive a monthly salary of at least two (2) times the state minimum wage, regardless of the number of hours worked. This means that the employee's pay will not be reduced due to variations in the quality or quantity of her work, nor will it be reduced because of partial-day absences from work (though deductions for missing whole days are generally permissible). If an employer docks an employees' pay for partial-day absences, the employees may be eligible for overtime pay. Even if paid on a salary basis, the employer has the burden of proving that the employee is not entitled to overtime compensation.

If you feel you have not been properly paid for overtime work, we welcome you to contact the Workman Law Firm for a free consultation.