San Diego Unpaid Overtime Claims
Overtime law in California requires that non-exempt workers receive pay that equals:
- One and one-half times the employee’s regular pay for all hours in excess of eight hours and up to 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and
- Double the employee’s regular rate of pay for all hours worked in excess of 12 hours in any workday or in excess of eight hours on the seventh consecutive day of work in a workweek.
Certain categories of employees are exempt from overtime pay, including executive, administrative, or professional employees. While some employers think that by adding one of these three words to an employee’s official job title they can automatically forget about paying overtime, that is simply not the case—although it is often tried. From a legal standpoint, whether an employee is exempt from receiving overtime pay has a great deal to do with duties and little to do with titles.
These FSLA definitions serve as guidelines for determining who is exempt:
- A person who is exempt as an executive employee must customarily and regularly direct the work of two or more other full-time employees;
- Have management as the “primary duty;”
- Have the authority to hire and fire, or to have significant input into personnel decisions and employee status;
- Customarily and regularly exercise discretionary powers;
- And spend no more than 20 percent of his/her hours weekly in activities not directly and closely related to those duties, or 40 percent in a retail or service establishment;
- And be paid a salary.
To be classified as an exempt administrative employee, a person must have as his/her primary duty office or non-manual work directly related to management general business operations; or be working in educational administration directly related to teaching ; customarily and regularly exercise discretion and independent judgment; regularly and directly assist executive or administrative employees; or perform specialized or technical duties under only general supervision; or perform special assignments or tasks under only general supervision; spend no more than 20 percent of his/her hours weekly in activities not directly and closely related to these, or 40 percent in a retail or service establishment; and be paid a salary.
To be considered a professional employee, a person must have as his/her primary duty work which requires advanced knowledge requiring extensive education; artistic creativity; or teaching/imparting knowledge in a school or educational institution; or highly specialized knowledge in a computer/software occupation; consistently exercise discretion and judgment; and perform work which is predominantly intellectual and varied over a given period of time; spend no more than 20 percent of his/her hours weekly in activities other than these; and be paid a salary.
When computing overtime, an employer is required to add nondiscretionary bonus to the base.
Comp Time instead of Overtime
Besides misclassifying employees, another ruse that some employers illegally use is to give comp time instead of overtime pay. An example of this is when a worker is asked to work 50 hours one week and is then allowed to work only 30 the following week, so the two average out to 40 hours between them. The employee loses the one-and-a-half times the pay rate the law requires.
When an employer uses these methods throughout the company, a class action lawsuit is a possibility, giving more leverage through numbers.
If you as an individual, or many of the workers in your company have been denied the overtime pay you’re entitled to, the highly experienced wage & hour lawyers at Harrison & Bodell can help. Call for a free consultation.