A crowd of construction workers


Robinson Bradford LLP Sept. 2, 2021

These days, everyone is familiar with workplace issues like minimum wages, overtime pay, and the 40-hour workweek, but prior to the Great Depression, these were not legislated rights. Some states had begun implementing minimum wages, but not until 1938 and the passage of the federal Fair Labor Standards Act (FLSA) did these protections for working Americans become the law of the land.

The FLSA still sets the floor for minimum wage and overtime pay standards across the country, but states are free to aim higher and set loftier standards. One such state is California, which has always prided itself on being a pacesetter in moving the legislative bar.

Though counties and municipalities in California can set their own minimum wage, the state establishes overtime pay standards, and the Golden State is one of the more progressive in the country.

If you think your employer has been cheating you out of overtime pay, contact our team of employment and labor law attorneys at Robinson Bradford LLP. We will review your situation and advise you of your options going forward. At Robinson Bradford LLP, we serve clients in Stockton, Costa Mesa, Temecula, and the neighboring communities.

Who Is Entitled to Overtime Pay?

When addressing the issue of overtime, both federal and state standards should be taken into consideration.

Federal Standards

On the federal level, the FLSA covers all employees, not otherwise exempt, who work more than 40 hours in a given workweek, and requires payment one-and-a-half times the employee’s regular hourly rate for every excess hour over 40. It defines the workweek as any 40-hour schedule established by the employer during a recurring 7-day (168-hour) period.

The FLSA exempts from overtime pay employees who work in executive, administrative, professional, computer, or outside sales capacities. They must be paid a minimum of $684 a week to qualify and meet other obligations.

California Standards

California uses the same workweek definition as specified in the FLSA, but it expands the awarding of overtime pay. In California, if an otherwise non-exempt employee works more than 8 hours in a single day, he or she must be paid overtime. If the overtime work exceeds 12 hours, then the pay jumps to double the normal hourly rate. If the employee works on the seventh day in the defined workweek, that pay must be one-and-a-half times the normal rate. Working more than 8 hours on the seventh consecutive day earns double time.

California exempts the same categories as does the FLSA and requires those falling under these exempt categories to earn at least twice the state’s minimum wage. For 2021, the minimum exempt salary for companies with 25 or fewer employees is $54,080 per year. If an employer has 26 or more employees, the exempt salary rises to $58,240.

Independent contractors and those working under a collective bargaining agreement (CBA) are also exempt, but the CBA must provide both minimum wage and overtime protections at least as stringent as the state’s — or higher. Independent contractor status is closely guarded in California and only those who routinely control their own work schedules and agree to provide a service for a set amount qualify.

Certain specialized occupations with their own rules, such as camp counselors, live-in household workers, or agricultural workers are also exempt. California also allows businesses to set up alternate work weeks. For instance, a company may decide to set the workweek as 10 hours a day for 4 consecutive days. Overtime would then kick in above 10 hours. These arrangements, however, must be agreed to by at least two-thirds of the workforce.

Unauthorized Overtime

What if you routinely work past the clock to catch up on things, but your employer has not requested or authorized you to do so? Under the FLSA, you are still required to be paid overtime. Section 785.11 of the FLSA states: "Work not requested but suffered or permitted is work time.”

The FLSA places the onus on the employer to monitor overtime activities. Section 785.13 explains: "In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed.”

California law mirrors these provisions, saying overtime pay is due if the employee is “suffered or permitted to work, whether or not required to do so.” Likewise, it is up to the employer to monitor and control overtime schedules.

Employment Law Experience You Can Trust

Our attorneys at Robinson Bradford LLP have been helping employees fight back against violations of labor and employment law for more than two decades.

If you feel you’ve been owed back overtime pay, or worse, that you’re being routinely abused of your right to overtime pay, contact us for a case evaluation. We will listen to your story, investigate, and guide you in pursuing the compensation you’ve earned and deserve.

With multiple locations, we serve clients in Stockton, Costa Mesa, Temecula, and the surrounding communities. Don’t sit back and let your employer take advantage of you. Contact us immediately.