Overtime Pay FAQ

What hours do I get paid for working?

An employer is required to pay their employees for all hours worked. Under the Fair Labor Standards Act (FLSA), compensable hours worked refers to the time a worker is suffered or permitted to work. California wage and hour laws are even more liberal in construing what constitutes hours worked. State labor laws usually maintain that an employee is entitled to be paid for all the time that they are under their employer’s control. Therefore, if an employee is subject to their employer’s control, he/she is entitled to be paid even if they are not actually working.


When am I supposed to be paid overtime wages?

Under California labor laws, employees are entitled to be paid overtime wages when they work:

  • More than 8 hours in a workday
  • More than 40 hours in a workweek
  • More than 6 consecutive days in the same workweek


How much should I be paid for my overtime hours?

Employees are entitled to be paid 1.5x their regular rate of pay for: (1) all hours worked in excess of eight hours that are up to and including twelve hours in a workday, (2) all hours worked in excess of forty hours in a workweek, and (3) the first eight hours worked on the seventh consecutive day in a workweek. Workers are entitled to be paid 2x their regular rate of pay for all hours worked in excess of twelve hours in a workday and eight hours on the seventh consecutive day in a workweek.


What does a workday and a workweek count as under the California Labor Code?

A workday is any consecutive 24-hour period beginning at the same time each calendar day. The normal workday in California is from 12:00am to 12:00pm. However, employers can set different workdays as long as they do not change around the workdays for the purposes of dodging the state’s overtime requirements.

A workweek refers to any seven consecutive days, starting with the same calendar day each week; that is, a workweek is a fixed and regularly recurring period of 168 hours, seven consecutive 24-hour periods.


Does my employer have to give me wage statements?

Under California labor laws, every employer must keep accurate records for each non-exempt employee for at least two years. These records must identify: (1) when the employee begins and ends work each period; (2) when the employee takes a meal period, unless all work ceases; (3) the employee’s total daily hours worked; and (4) the total hours the employee worked in the payroll period and all applicable rates of pay.


What if my employer does not know that I am working overtime?

If an employer has constructive knowledge that a non-exempt employee is working overtime hours, the company must pay the employee overtime wages. Constructive knowledge means that an employer does not necessarily know that an employee is working overtime, but should know based on the circumstances. For example, if your employer is assigning you 20 hours of work per day, but only marks down that you worked 8 hours, your employer should be liable for unpaid overtime wages.


What if I don’t have the records to prove that I worked overtime?

It is the employer’s responsibility to keep accurate records of the time that their employees work. If an employer fails to maintain accurate time records, their employees may seek to recover unpaid overtime compensation and establish their claims if sufficient evidence is provided to show the amount and extent of that work by reasonable inference. An employee’s credible testimony or other credible evidence concerning their hours worked is sufficient to prove a wage claim. The burden of proof is then on the employer to provide evidence of the precise amount of work performed or to negate the reasonableness of the inference drawn from the employee’s evidence. In other words, the employer must provide credible evidence to show that the hours claimed by the employee were not worked. If the employer fails to produce this evidence, the employee may then be awarded damages based on an approximation of their hours worked.


If I win my overtime case, do I get unpaid interest too?

If an employee is entitled to unpaid overtime wages, the employee is also entitled to 10% interest on those wages, from the date they were due until the date of judgment. The 10% mark is typical but can vary depending on the circumstances. However, interest on unpaid overtime wages is almost always available.


Are there additional penalties if I am not paid all of my wages upon termination?

Under California labor laws, if an employee is terminated, their employer must pay them all earned and unpaid wages immediately upon termination. The failure to do so can result in a violation of state labor laws under which the employer has to pay the employee for thirty extra days of wages. Wages for purposes of this rule include vacation pay and other similar benefits.


If my employer intentionally does not pay me upon termination, what can I win?

With respect to California waiting time penalties, in order to determine the amount of penalties an employee is entitled to for not being fully paid upon termination, it is first necessary to know the employee’s regular rate of pay. You then multiply their regular rate of pay times the number of hours the employee works per day—usually 8 or more hours. Once you have the employee’s daily rate of pay, multiply it by 30 days or less, depending on how many days it takes the employer to pay the employee. For purposes of calculating wage and hour damages, the regular rate of pay includes all remuneration paid to the employee by the employer, including any bonuses and commissions.


Am I entitled to eat lunch without my employer bothering me to work?

Under California labor laws, for a work period of more than five hours, an employee is entitled to an uninterrupted and completely off duty meal period of at least thirty minutes. However, there are certain circumstances in which the employer and employee can mutually consent to waive the meal period. If an employee is not relieved of all duty during a thirty minute meal period, the meal period should then be considered an “on duty” meal period and counted as time worked.


Do I get more than 1 lunch break per day?

Under the California Labor Code and the Wage Order, an employer cannot employ an employee for a work period of more than ten hours per day without providing them with a second uninterrupted meal period of at least thirty minutes.


What penalties can I win if I am not paid for working through my lunch?

If an employer fails to provide an employee with a meal period in accordance with the California labor laws, the employer must pay the employee one hour of pay at their regular rate of compensation for each workday that the employee missed their meal period. However, no matter how many lunch periods an employee misses per workday, the employee can only get one meal period penalty per day.


What if my employer makes me clock out and work through rest breaks?

If an employer fails to provide an employee with a rest period in accordance with the California labor laws, the employer must pay the employee one hour of pay at their regular rate of compensation for each workday that the rest period is not provided. But just like the meal period rule, the employee can only recover one rest period per day, even if the employer commits multiple rest period violations.