Overtime and Unpaid Wages

Overtime and unpaid wages

Unpaid Overtime Pay
Most employees in California paid by the hour are entitled to overtime pay at a premium rate based upon the number of hours worked. For example, an employee may be entitled to the following:

  • one and one-half times their regular hourly pay rate for (1) work in excess of 8 hours per day or 40 hours per week, and (2) for the first 8 hours worked on the seventh consecutive day worked; and
  • two times the regular rate of pay for (1) work in excess of 12 hours in a day, and (2) for all time after the eighth hour on the seventh day worked.

If you have any questions about overtime wages, feel free to call us at 415.434.3400 for a consultation with one of our attorneys, or contact us online.  Workers who have been wrongly denied overtime pay are entitled to recover not only their actual unpaid overtime wages due, but in addition may receive reasonable attorneys' fees, costs, interest and substantial penalties based on the California Labor Code. Federal law and California law also authorize additional 'liquidated damages' equal to the amount of wages owed. State and federal overtime regulations are often complex and confusing, and employers often misclassify employees, intentionally or accidentally, which results in a failure to pay overtime wages.

Misclassified as “Exempt” from Overtime Pay
Certain types of employees are legally 'exempt' from overtime laws and therefore do not receive overtime pay. However, these exemptions are narrowly construed. California law provides specific tests to determine whether an employee should be classified as "exempt".  Employers often misclassify employees as exempt, when in fact the employees do not meet the legal test for any exemption and therefore should be paid overtime wages.  If you have any questions about exempt status and unpaid overtime wages, please contact us. Misclassification of employees can be very costly to employers.

Here are common ways employers may misclassify employees:

Independent Contractors: Simply calling an employee an independent contractor in an employment agreement or job description does not excuse an employer from paying overtime.  Although workers who are truly “independent contractors” are exempt from overtime laws, employers often misclassify employees as “independent contractors.”  If an employer incorrectly labels employees as independent contractors it deprives them from the overtime compensation to which they are entitled.  For more information, please see our “Employee” Status v. “Independent Contractor” Status. 

Specific Industries and Occupations: California also has a separate and complicated set of overtime wage rules regarding employees in specific industries. For example, regulations may apply to most “commercial drivers” but not “inter-state commercial drivers.”  Also, some highly trained medical professionals are exempt from overtime pay, others are not.  Similarly, computer programmers may be subject to different rules than computer network analysts. Our experienced attorneys can help you understand the particular rules that apply to your industry and occupation. Many people mistakenly believe only low paid laborers or service workers have claims for unpaid wages, overtime or commissions, however, that is simply not the case. Many highly paid employees are entitled to overtime as a matter of law. Here are some examples of workers who may have large claims for unpaid overtime:

  • assistant managers;
  • truck drivers who do not cross State lines, limo drivers or other drivers;
  • software designers, network analysts, computer engineers, IT specialists or other types of computer or software workers who work more than eight hours per day or forty hours per week, and are not paid overtime;
  • nurses (who are not certified midwifes or practitioners) who work for over 8 hours/day or 40 hours/week;
  • ambulance drivers or emergency medical technicians who work more than 8 hours/day or 40 hours/week;
  • janitors, housekeepers, hotel clerks, cashiers and others who are paid by the hour;
  • commission salespersons such as a mortgage brokers, stockbrokers, bank or home loan employees, or insurance salespersons who have been wrongly classified as exempt when in fact they are entitled to overtime; and assistant managers.

 
Prevailing Wage for Public Works Contracts
In California, certain private employers who are awarded public works contracts from government bodies are required to pay their employees a "prevailing wage." A prevailing wage is a minimum wage set by the Department of Industrial Relations that public works employees in similar industries and locales are paid for their work on such projects. Some employees who are entitled to prevailing wages must be paid overtime premium rates after 7 hours of work per shift. Employers who fail to pay their employees prevailing wages must not only compensate them for any underpayment but are also subject to significant penalties,fines and attorneys' fees.

Other Pay Violations
California employers often commit other violations of the California Labor Code such as:

  • neglecting to reimburse employees for business expenses,
  • failing to pay for all accrued but unused vacation wages at the time of separation from employment,
  • not providing employees with their uniforms free of charge, and
  • not providing accurate paystubs.

 

 

If you have questions about California Labor Code violations, unpaid overtime or other wages issues, contact us today by calling us at 415.434.3400 to schedule a no-fee initial in-person consultation.

Kletter + Nguyen Law LLP - San Mateo
1900 S. Norfolk Street, Suite 350
San Mateo, CA 94403
Phone: 650.577.2336
415.434.3400