got overtime?

Law Offices of Michael Tracy
"If the exemption doesn't fit, the employer must remit."

1-866-GOT-OVERTIME
Irvine • Burbank • San Francisco

California Overtime Law

FAQ - I worked from 4PM on one day until 8AM the next day, am I entitled to overtime? Double time?

In most cases, no. Although you worked 16 consecutive hours in the same shift, overtime is computed on a daily basis, not on a per-shift basis. Using the per-day basis, overtime "resets" at midnight. Thus, this situation would be computed as 2 days of 8 hours each and no overtime would be due (assuming you did not work any other hours that day). However, if you worked 4PM to 8AM and then 4PM to 8AM on back to back days, this would be 8 hours on day 1, 16 hours on day 2, and 8 hours on day 3. The day middle day would be paid at 8 hours straight time, 4 hours overtime, and 4 hours double time.

Most companies use midnight-to-midnight as their work day, though they can use any 24 hour period. The company can not arbitrarily change the 24 hour period to eliminate overtime. They can change the 24 hour period due to periodic changes in business. For instance having the 24 hour period start at midnight when you work the day shift but noon when you come in and work the night shift would be illegal. However, having the 24 hour period start at midnight during the summer months and then 5AM during the winter months would be legal. In general, periodic changes that are driven by business factors are legal while schemes to avoid paying overtime are illegal.

It is legal for the employer to have different work days for different employees -- it does not have to uniform across the entire company.

FAQ - I worked two shifts with only 4 hours in between them, do I get extra overtime pay until I receive at least 8 hours off between shifts?

No, unless you work in the entertainment industry. Contrary to popular belief, there is no requirement that an employer provide any number of hours off between shifts except in the motion picture production industry. It appears that this provision, contained in the Motion Picture Industry Wage Order (#12-2001) was implemented to reflect the prevailing practice in the industry to provide penalties for "forced calls" -- that is, when employees are called by into work without a certain number of hours off. In the Motion Picture Industry, the employees are entitled to 10 hours off. However, there is no specified fine for a violation of this. As such, even in the Motion Picture Industry, you do not get overtime or double time if you are subject to less than 10 hours off. You would be able to sue for some type of civil penalty that would likely net you very little money. However, it would be illegal for the employer to terminate you for refusing to come in with less than 10 hours work in the Motion Picture Industry. In reality, this is a very weak provision that affects very few people. It should also be noted that many people employed in the Motion Picture Industry are covered by collective bargaining agreements that do provide stiff penalties for "forced calls." Many of these provisions include paying double time until the required time off is given. However, these provision do not apply to the general workforce.

There are other laws for certain industries that relate to the safety of operations. For instance, truck drivers and airline pilots have various Hours of Service regulations. However, none of these provide any type of premium wages to the employee for working the hours.

FAQ - I worked 9 days in a row, don't I get double time after working 7 days in a row?

Much like daily overtime, weekly overtime is considered on a week-by-week basis. The standard workweek is Sunday-Saturday, but can be any routine 7 day period set by the employer. The only overtime laws for consecutive work days say that if you work 7 consecutive work days in the same week, then on the 7th day, you will receive overtime for the first 8 hours worked and double time after 8 hours.

First, you should note that the 7 days must be worked in the same week. Thus, if you have a standard work week of Sunday-Saturday (most people do), then even if you work 10 days in a row from Tuesday to the following Friday, you will not trigger this particular provision because all 7 days were not in one week. You worked 5 days in one week and 5 days in the next week. Of course, if you worked more than 40 hours in either week or more than 8 hours on any day, then you would be entitled to overtime, but you would not receive anything additional simply because you worked 10 days in a row.

Finally, it should be noted that in most cases when you work all 7 days in the same work week, you usually have hit 40 hours in the week after 5 or 6 days. As such, in most cases, you are already making overtime on the 7th day anyway because you are past 40 hours in the week. You do get double time an extra 4 hours early on that 7th day, but this usually does not amount to that much additional compensation.

Even if you do work the 7 days in the same week, you automatically go back to straight time when the new week starts. The employer does not have to give you any time off and you automatically go back to straight time.

FAQ - Does daily overtime count towards the 40 hour a week overtime? That is, if I work 5 days of 10 hours each, I know I get overtime after 8 hours on each day. However, on the 5th day, because I have already worked 40 hours in the week, do I get overtime for the whole day, or are only the 8 hours a day of straight time that I worked counted?

The DLSE has stated that, "Once an hour is counted as an overtime hour under some form of overtime, it cannot be counted as an hour worked for the purpose of another form of overtime.  When an employee works ten hours in one day, the two daily overtime hours cannot also be counted as hours worked for the purpose of weekly overtime." As such, you would should be paid 8 hours Straight Time and 2 hours Overtime for each of the 5 days. Your employer could pay you the extra overtime if they wanted to -- there is never anything illegal about overpaying. However, they are not required to double count the hours.

FAQ - I worked past 8 hours in a day, but I did not work 40 hours in the week, my boss says that I only get the daily overtime if I work 40 hours in the week, is that right?

No. You are entitled to daily overtime no matter how many hours you work in a week. If you work one day for 9 hours, you are entitled to 8 hours straight time and 1 hour of overtime.

FAQ - I normally work during the day and my employer has asked me to now work some nights. Am I entitled to additional night shift premiums or graveyard shift premiums?

California Labor Law does not have any provisions for night premium wages. If your employer has a policy of paying those, then they will likely pay them to you. However, employers are allowed to change their policies at will, even if the policy change applies to only one employee. As such, unless you have a valid contract that guarantees you these premium wages, the employer is not required to pay them to you.

 

©2013 Michael Tracy

This website only provides general information about the overtime laws in California and is not meant to be legal advice and does not serve to establish an attorney-client relationship. Any statements, on this page or elsewhere, are not guarantees of any outcome. Michael Tracy is a licensed attorney only in California.