Is it Legal for my Employer to Not Pay Me Overtime?

In accordance with California state law, any more than 8 hours worked in a day or 40 worked in a week are required to be paid as overtime wages. Unfortunately, it isn’t uncommon for California employers to try to get around paying overtime by misclassifying employees or underreporting hours. If your employer has not been paying you the overtime wages you’re entitled to, there’s a good chance that you can recover your unpaid wages.

Exempt vs. Non-Exempt Employees

With regard to overtime in California, employees fall into one of two categories: exempt and non-exempt. Overtime laws vary depending on the employee’s classification. 

For “exempt employees,” California wage and hour laws, including overtime laws, do not apply. Exempt employees, including executive, administrative and professional employees, make this up by earning at least twice the California minimum wage.

Non-exempt employees are required by California law to be paid overtime wages should they work overtime. This includes “persons employed in professional, technical, clerical, mechanical, and similar occupations whether paid on a time, piece rate, commission, or another basis.”

Sometimes employers will classify a non-exempt employee as an exempt employee, incorrectly, in order to avoid having to pay out any overtime. California law states that in order to be classified as an exempt employee, the following requirements must be met:

• More than one half of the employee’s work time must be spent on managerial, intellectual, or creative work.
• Independent judgment and discretion must be customarily and regularly exercised when performing job duties.
• A monthly salary equivalent to twice that of the California minimum wage must be earned, from full-time employment.

How Overtime Pay Is Calculated

In California, it’s required that non-exempt employees be paid by their employers for any overtime worked that takes them over the maximum number of daily or weekly hours: 40 hours per week or 8 hours per day.

Any non-exempt employees without alternative workweek schedules will be eligible for paid overtime when they work the following:

• More than 8 hours are worked in a single day
• More than 40 hours are worked in a single work week
• More than 6 days in a single work week

Any hours worked over this time should be paid at a minimum one and a half times the employee’s regular rate of pay, and any work in excess of 12 hours in one single day, or in excess of 8 hours if it’s the 7th consecutive day of a work week, should be paid double the regular hourly rate.


If you’re in a situation in which you’ve worked overtime over the allotted daily or weekly hours, however, it was not requested by or authorized in advance by your employer prior to the work being undertaken, then the California wage and hour law still considers this overtime, and stipulates that your employer will still owe you overtime pay.

You will only be entitled to unauthorized overtime pay however so long as your employer “suffers or permits” you to work overtime, meaning that the employer must either know or have reason to know, that you were working the overtime or working off the clock.

It should be noted that many employers may have introduced company policies that forbid their employees from working any unauthorized overtime. While an employer may discipline or even go as far as to fire an employee for violating their unauthorized overtime policy, they will still be obligated to pay for any unauthorized overtime that was worked.

Working “Off-the-Clock”

From time to time, employers may try to unlawfully have an employee clock out while performing some kind of work. In the state of California, it is illegal for an employer to require their employees to work “off-the-clock” duties such as the following examples without compensation.

• Duties before an employee’s shift has started
• Duties after an employee’s shift has ended
• Administrative duties
• Working during a rest break or meal break
• Remaining at the front desk while on a lunch break

Any work performed off-the-clock should be paid by the employer at the employee’s regular hourly rate. Any off-the-clock work that puts an employee over their maximum daily or weekly hours should be paid at overtime rates.

Can I be Forced to Work Overtime?
In essence, any employer is well within their rights to dictate what an employee’s work schedule looks like, no matter the hours or days required, and so may very well ask this of an employee.

While California’s hour and wage laws allow for employers to implement mandatory overtime, federal law also does not inhibit employers from requiring overtime work from their employees as and when it’s needed. California workers may refuse to work any additional hours, without any fear of penalties or ramifications, but only so long as they’ve already worked 72 hours or more over the past week. Any overtime that is forced on an employee by their employer must be paid at a rate of at least time and a half if they’ve exceeded 40 hours of work over the work week.

There have been a number of pieces of legislation passed by several states that curtail or even go as far as to prohibit an employer’s ability to impose mandatory overtime. Any employers found breaching these laws will face severe sanctions, along with any employers who have given employees disciplinary action or even gone to the lengths of firing employees for refusing to work additional overtime.

Filing a Lawsuit for Unpaid Overtime

If your employer is unwilling to pay for any worked overtime then this is a violation of California wage and hour laws, and it will be possible to file a wage claim or a lawsuit against your employer in order to recover the unpaid overtime pay.


If your employer does not pay you for overtime, you have the right to file a wage claim with the California Division of Labor Standards Enforcement or file a lawsuit against the employer in the following ways:

Filing a wage claim with the DSLE: 

If either California law or federal law has been violated by your employer with regards to your wages, you can file a claim against them. Thanks to the state of California’s laws being more favorable towards employee rights than federal laws, the majority of claims will follow California’s state laws. Among many other things, this includes violations of the minimum wage, overtime, final paychecks, meal and rest breaks, unpaid tips, unpaid vacation, and unauthorized deductions.

In order to file a claim, an Initial Report or Claim form must be completed and filed with the Department of Labor Standards Enforcement. You will need to provide information with regards to yourself, your employer, your work schedule, and what you are claiming for. Additional forms may need to be completed if you work irregular hours, are claiming unpaid commissions, or are claiming for unpaid vacations. It may also help to supply time records, paystubs, bounced checks and any notices to the employee regarding your employer to help better evaluate your case, although these usually aren’t necessary.

The majority of wage violation claims must be filed within 3 years of the violation, and if the wage violations are on-going, the DLSE will look to the 3 years prior to the claim being submitted.

Filing a lawsuit against your employer: 

If you are not successful with a DLSE claim, or you prefer to skip this step, a wage and hour lawyer can help you determine if you have a legal claim. Filing a lawsuit against your employer with the help of an employment lawyer in Los Angeles can be an avenue to recover the money you are due.

A lawsuit made by an employee against an employer for violating California overtime laws may include the following:

• Failure by the employer to pay the employee overtime compensation after working more than 8 hours in a day
• Failure by the employer to pay the employee overtime compensation after working more than 40 hours in a week
• Failure by the employer to pay the employee overtime compensation after working more than 6 days consecutively
• The employee was required by the employer to work off the clock
• The employee was required by the employer to work unpaid during their lunch break
• Classifying an employee erroneously as an “exempt employee”
• Classifying an employee erroneously as an “independent contractor”

Many employees will avoid filing a lawsuit if it’s only over a matter of a few hundred dollars, as they believe that it won’t be worthwhile. What many don’t realize is that when it comes to overtime pay lawsuits, claimants are able to recover not only their unpaid wages but also claim interest and attorney fees. In addition to this, federal law stipulates that any employer who violates FLSA overtime wage laws is liable to pay both the employee’s overtime allowance, but also an additional amount equal to what was initially unpaid.

Employers should always be held to account for any violations to California’s labor laws, and no employer should get away with taking advantage of and not fully paying their employees. If you suspect that your employer has been violating California labor laws with regards to your own pay, they may very well have been doing the same with a number of their employees too.

Contact a professional lawyer to discuss your case. An employment lawyer in Los Angeles can help you assess your case and determine if you have a claim against your employer to recover the unpaid wages you are due.

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Created on Oct 29th 2019 01:30. Viewed 287 times.

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