Overtime. The word may make you feel ecstatic or exhausted, depending in large part on your finances at the moment. When your employer asks you to work overtime, it means you'll have to put in more than a normal work week. The bad news is that you'll be putting in additional hours on the job, time you can't spend with your family or at leisure activities. The good news is that you'll be making extra money.
If you think the "normal" in "normal work week" is in the mind of the beholder, you are right. The ones calling the shots determine just how long a normal work week is and just how much more you will get for overtime. While the federal government steps in first to regulate the area under the Fair Labor Standards Act, states get a say as well. When the laws conflict, the worker is the winner, since whichever provides more protection is the law to be applied. In California, state law usually wins this contest since the state provides residents with additional benefits.
Federal Overtime Law
The "big gun" of employment laws is generally considered to be the federal government's Fair Labor Standards Act. While this employment law doesn't limit how many hours your boss can ask you to work in a day or week or any other period, it does set a minimum wage that employers must pay covered employees, as well as a standard work week of 40 hours. It also mandates extra pay, called overtime. Currently, the federal law sets the minimum wage at $7.25 an hour and requires overtime pay of 150 percent (1 1/2 times ) of the regular pay for every hour you work in excess of 40 hours in a work week.
Some federal laws are intended to cover an entire area of regulation. They essentially provide exclusive regulation of an area of the law, muscling out competing state laws. This is not the case in most employment law matters. States are free to require a different minimum wage and different overtime protections from those set out in federal law. The great news is that you get the benefit of whichever law provides a worker greater protection. California's employment law (primarily set out in California Labor Code section 510) easily wins out over federal law in both minimum wage and overtime.
Read More: What is California's Law on Overtime Hours
California Minimum Wage 2018
Since California overtime law mandates that an employer must pay you some multiple of your regular hourly wage, minimum wage laws come into the equation. Under federal law, the amount is 1 1/2 times the hourly wage, also known as time-and-a-half. If you make $8 an hour, overtime pay would be $12 an hour. If you earn $14 an hour, overtime pay would be $21 an hour.
California's minimum hourly wage is greater than the federally required $7.25 per hour. In California, almost all employees must be paid the state minimum wage, set at $11.00 an hour at the time of publication for those employing more than 25 employees, or $10.50 an hour for those employing less than 26 people. The amounts are set to rise annually until the across-the-board minimum wage is $15.
Note that California also gives municipalities the authority to require employers operating within their borders to pay employees higher minimum wages. Many cities have done so. For example, at the time of publication, San Francisco already sets the minimum wage at $15.
California Overtime Law 2018
So, that brings us to California Overtime Law, 2018. In addition to providing higher wages that will obviously increase overtime pay, California has other general overtime rules that are beneficial to workers and put more money in their pockets. These rules apply only to adult employees (over the age of 18 years old) who are not exempt from the law.
First, California overtime law provides that overtime requirements apply to any hours your employer asks you to work above 40 in a week. This is similar to federal law. But under California overtime law, you also get overtime for any hours over the standard eight hours you are asked to work in one day, officially setting the "standard workday" at eight hours. Under federal law, your employer can set you up for four shifts of 10 hours each without having to pay overtime, as long as the total hours worked in a week are 40 or less. In California, if you have to work four 10-hour days, you get two hours of overtime for each of those 10-hour days.
Note that a California employer can establish, with the consent of a majority of employees, an "alternative workweek," for example, four 10-hour workdays instead of five standard workdays. If this is done and approved according to regulations, no overtime is required for the more-than-eight-hour workdays.
Second, although the federal time-and-a-half wage applies as initial overtime in California, it is the multiple only for the first 12 hours you are asked to work in a workday. That is, if you are asked to put in a 12-hour workday, the extra four hours would each have to be compensated at time-and-a-half rather than your hourly wage. Any hours over 12 in a California workday, however, must be compensated at double time. You also are entitled to time-and-a-half pay for the first eight hours worked in a seventh consecutive workday.
California's double time law also applies to any hours you are asked to work over a standard workday on a seventh consecutive day in one workweek. That is, if you don't get one day off a week, your employer must give you double pay for any hours over eight worked on the seventh day.
California Overtime Law Exemptions
Neither federal overtime law nor California overtime law applies to every working person. Each law has exemptions. Those who fall into the exemptions are said to be "exempt" from the protections of the overtime laws. Those who do not fall into the exemptions are referred to as "nonexempt." Nonexempt employees are the ones that qualify for overtime. All an exemption means is that the overtime law doesn't cover that person. Employers must prove that the employee "plainly and unmistakably" fits into an exemption and, if there is doubt, the courts resolve the issue in favor of nonexempt status.
The primary category of exempt employees in both federal and California overtime regulations include those whose responsibilities include executive, professional or administrative (office work related to management) duties. In order to fit this exemption, the employee must get a full-time salary of at least twice the minimum wage, engage in white-collar duties and be called upon to exercise independent judgment. Being a salaried employee means that the person takes home an amount of pay that does not vary depending on the hours worked.
Certain professions are specifically mentioned in the federal law as entitled to overtime benefits. These include all types of first responders. That means police officers, firefighters and paramedics. Practical nurses and paralegals, who would otherwise fall under the exempt category, are also specifically protected by overtime law, as these particular professionals often endure long hours of work, and may be exploited or overworked by their employers otherwise.
Employees who get commissions instead of salary are often exempt from California’s overtime pay protections, as well. To be exempt, the employee must make over 1 1/2 times the minimum wage, calculated on a monthly basis. She must get more than half her pay from commissions and work in either retail, or have a professional, technical or clerical occupation.
If an employee is on the road selling products most of the time, she qualifies as an outside salesperson. This is another category of employee exempt from the overtime law protection. Certain unionized workers are also exempt. To fit the exemption, they must be covered by a collective bargaining agreement that expressly provides for the employee's wages, hours of work, and working conditions of the employee, including premium pay for overtime hours and a salary at least 30 percent higher than California's minimum wage.
"Work Time" Specifications
Okay, you say, overtime kicks in after 40 hours of work in a week, but what hours are included as work hours? A lot of the more interesting issues raised in overtime wage claims involve whether a certain type of activity is included as work hours. For example, if an employee is sent on a business trip to Australia, just the airplane hours exceed the eight hours in a California workday definition. Or, how about employees "on call," who stay at home but must remain free to rush into work if called upon to do so. Or employees who are asked to sleep in the place of business to be available if need be?
In California, there are two separate tests for determining whether an employee is working (for overtime purposes) during a given period of time. The first test is whether the employee works during the period. The second is whether the employee is subject to the control of an employer. Note that these tests are completely independent. If an employee is subject to the employer’s control even though she is not called upon to work, the hours are counted as hours worked even if the employer doesn't work during them.
However, it is not always clear whether an employee is "subject to the employer's control," and the issues often get resolved by the courts. Generally, California courts have ruled that "hours worked" don't include on-call hours if the employee is free to engage in personal activities during the on-call time and is given a reasonably long time to get to work after being called. Being required to sleep on the premises is one of the factors the court weighs in determining whether the on-call hours are work hours.
Travel Time as Work Hours
A commute can take up a big chunk of your day, a fact recognized as gospel by anyone living in one of California's busy urban centers (yes, this means you, Greater San Francisco Bay Area and greater L.A. residents). But no matter how long it takes you to cross that darn bridge or catch the bus or train to get to work, those hours are not included in the workday hours. This is true even if you use optional ride-sharing programs set up by your employer. However, if part of your work contract obligates you to ride employer-provided transportation to work, commuting time is included in “hours worked” for overtime purposes.
Now about that business trip to Australia. The general rule in California is that all hours the employee is performing services for the employer are included in work hours. This includes time spent on employee travel when it is part of the job. However, generally only regular business hours are included. The time you spend sleeping in a hotel in another city (to attend a business meeting or conference) are not compensated, nor do they count toward overtime.
- California Department of Industrial Relations: Overtime
- Work Lawyers: Overtime Laws CA
- Work Lawyers: Overtime Exemptions Under California Law
- The National Law Review: New California Laws 2018
- United Employees Law Group: Overtime
- Lore Law: Overtime
- Minimum Wage.org: Federal Overtime
- HRS: Travel Pay Laws in California
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.