Minimum Wage and Overtime FAQs

By Jean H. Power

Many of our clients, regardless of the type of case they have, may have a labor and employment law issue.  Below are common questions that relate to minimum wage and overtime pay.  If you encounter a client who may not be getting paid properly, please refer them to Jean at the employment law department to see if we can help them.

ARE YOU GETTING PAID MINIMUM WAGE?

Beginning on January 1, 2022, if you work for an employer with 26 or more employees, the State of California provides that you must be paid at least $15 per hour.  If you work for an employer with 25 or fewer employees, the State of California provides that you must be paid at least $14 per hour.  Many California Cities and counties may have higher minimum wage rates.  And agricultural workers may be subject to different minimum wage rates.  If you are not being properly paid minimum wage, you should contact the Law Offices of Scott Warmuth at 626-363-2140 to see if you have a legal claim against your employer.

DOES MY IMMIGRATION STATUS PREVENT ME FROM BEING PAID MINIMUM WAGE?

No.  Regardless of your status, all workers in the State of California must be paid at least minimum wage. 

WHAT IS OVERTIME PAY?

Generally, under California law, if you are an hourly, or “nonexempt” employee, you must be paid overtime for all hours in excess of 8 hours per day or 40 hours per week.  That means, you should be paid more than your regular rate of pay if you work these extra hours.

HOW MUCH IS OVERTIME PAY?

Eight hours of labor constitutes a day’s work, and employment beyond eight hours in any workday or more than six days in any workweek requires the employee to be compensated for the overtime at not less than:

  1. One and one-half times the employee’s regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and
  2. Double the employee’s regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.

There are, however, a number of exemptions from the overtime law. An “exemption” means that the overtime law does not apply to a particular classification of employees. There are also a number of exceptions to the general overtime law stated above. An “exception” means that overtime is paid to a certain classification of employees on a basis that differs from that stated above.  In other words, an exception is a special rule.  To determine if you qualify for overtime pay, and most employees do, you should speak to the employment law department.

WHAT ARE SOME EXAMPLES OF OVERTIME PAY?

Example #1:  I work in packing plant and I am paid $15 per hour. I work 8 hours per day on Monday, Tuesday, Wednesday, and Thursday.  On Friday, I work 10 hours.  Am I entitled to overtime pay?

Yes, since you worked 10 hours on Friday, you should get paid time and one – half for two hours of work.  That amount would be $15 plus $7.50 (which is half of $15) for a total of $22.50 per hour for those two overtime hours.

Example #2:  What if I worked, at the same job, for 8 hours per day on Monday, Tuesday, and

Wednesday.  On Thursday, I worked 6 hours.  On Friday, I worked 10 hours, for a total of 40 hours in the week.  Am I entitled to overtime for the extra hours I worked on Friday?

Yes, since you worked 10 hours on Friday, you should get paid time and one – half for two hours of work.  That amount would be $15 plus $7.50 (which is half of $15) for a total of $22.50 per hour for those two overtime hours.

Example #3:  What if I worked 8 hours per day on Monday, Tuesday, and Wednesday.  I worked

for 14 hours on Thursday.  I do not work on Friday.  Am I entitled to overtime?

Yes, on Thursday, you worked over 8 hours.  For hours 9, 10, 11, and 12, you should be paid $22.50 per hour, which is time and one-half.  For hours 13 and 14, you are entitled to be paid double time, or $30 per hour.

Example #4:  Last week I worked Monday, Tuesday, Wednesday, Thursday and Saturday, eight hours each day. I was out ill all-day Friday. For the workweek I was paid 48 hours at my regular hourly rate. Am I entitled to eight hours of overtime pay?

No, you are not entitled to any overtime pay. Overtime is calculated based on hours actually worked, and you worked only 40 hours during the workweek. Another example of where you get paid your regular wages, but the time is not counted towards overtime is if you get paid for a holiday but do not work that day. In such a case, the time upon which the holiday pay is based does not count as hours worked for purposes of determining overtime because no work was performed.

WHAT IF I SIGNED A DOCUMENT WITH MY EMPLOYER STATING I DO NOT WANT OVERTIME PAY?

You cannot waive your right to overtime.  You are still protected by the State of California and should be properly paid for all hours worked. 

IF MY BOSS TELLS ME THAT HE DID NOT “AUTHORIZE” ME TO WORK OVERTIME, SHOULD I STILL BE PAID OVERTIME?

Yes.  California law requires that employers pay overtime, whether authorized or not, at the rate of one and one-half times the employee’s regular rate of pay for all hours worked in excess of eight up to and including 12 hours in any workday, and for the first eight hours of work 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 in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.

An employer can discipline an employee if he or she violates the employer’s policy of working overtime without the required authorization. However, California’s wage and hour laws require that the employee be compensated for any hours he or she is “suffered or permitted to work, whether or not required to do so.” California case law holds that “suffer or permit” means work the employer knew or should have known about. Thus, an employee cannot deliberately prevent the employer from obtaining knowledge of the unauthorized overtime worked, and come back later to claim recovery but at the same time, an employer has the duty to keep accurate time records and must pay for work that the employer allows to be performed and to which the employer benefits.

WHEN SHOULD I BE PAID FOR THE OVERTIME HOURS THAT I WORK?

Overtime wages must be paid no later than the payday for the next regular payroll period after which the overtime wages were earned. Payment of overtime wages may be delayed to the payday of the next following payroll period as the straight time wages must still be paid within the time set forth in the applicable Labor Code section in the pay period in which they were earned; or, in the case of employees who are paid on a weekly, biweekly, or semimonthly basis, not more than seven calendar days following the close of the payroll period.

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