Unpaid and Miscalculated Overtime

OVERTIME PAY RATES

California law requires employers to pay overtime at the rate of 1.5 times the regular pay rate whenever employees work: (1) between 8-12 hours per day; (2) over 40 hours per week; or (3) the first 8 hours of work on the 7th consecutive workday in a workweek. Employers also must pay twice the regular pay rate whenever employees work over 12 hours per day and over 8 hours on the seventh consecutive day of work in a workweek.

COMMON OVERTIME VIOLATIONS

Employers often violate California’s overtime laws by engaging in the following conduct:

⇒ Miscalculating the number of overtime hours worked

For example, employers will schedule employees to work 8-hour shifts, but then require employees to arrive at work 15 minutes early without paying them for that time. Since the employees arrived to work 15 minutes early as directed, the employees are entitled to 15 minutes of overtime since they actually worked 8 hours and 15 minutes.

It does not matter if employees don’t do anything during this 15-minute time period. If employers require them to be at work 15 minutes early, they must be paid for this time.

⇒ Claiming that the overtime work was not authorized

California law requires employers to pay employees for all overtime worked, regardless of whether the overtime was authorized and regardless of whether the employers’ written policy states that only pre-authorized overtime will be paid.

⇒ Miscalculating the overtime pay rate

Overtime is miscalculated in numerous ways. For example, employers sometimes pay employees at more than one pay rate, but use the lowest pay rate for calculating overtime. Employers also fail l to include commissions, non-discretionary bonuses, and other forms of pay when they calculate the applicable overtime rate.

If, for example, employees earn $10.00 per hour in straight pay and regularly earn $2.00 per hour in commissions, the commissions must be included in the overtime rate. So if employees work overtime at the 1.5 rate, they should earn $18 per hour ($10.00 + $2.00 = $12 x 1.5 overtime rate = $18), not $15 per hour.

⇒ Misclassifying employees as exempt and paying them a salary

Only a small percentage of the workforce are exempt from overtime laws. In fact, California and federal law have very specific requirements for classifying employees as exempt. A job title doesn’t determine exempt status, even if the title contains words such as “director,” “manager,” or “supervisor.”

DAMAGES

Employers can be subject to considerable damages for not paying overtime to employees. Damages may include the unpaid overtime wages, interest on the unpaid wages, penalties and attorneys’ fees.

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