Overtime Lawyer

You cannot opt out of overtime pay. Your employer cannot ask that you opt out of overtime pay. Further, even if you are not authorized to perform the overtime work, you are still owed for the overtime work you performed.

That said, according to California law, there are a few alternative workweek schedules not subject to the above overtime laws. These alternative workweek schedules are addressed below.

FOUR 10-HOUR DAYS

Four 10-hour days, where employees receive an extra day off each week is permissible under Calif. Labor Code § 511. This alternative workweek schedule has become more popular in recent years. According to the law, if you work more than your regularly scheduled hours for the day, you are owed one and one-half times the regular rate of pay except any hours worked over 12 hours, you are owed double your regular rate of pay.

For example, if you work four 10-hour days, and on one day of the week, you worked for 13 hours. You are owed one and one-half your regular pay rate for two hours and double your regular pay rate for one hour.

COLLECTIVE BARGAINING

According to Calif. Labor Code § 514, employers are exempt from paying “daily overtime” to employees covered by a collective bargaining agreement where they receive a minimum of 30% more than the state minimum wage and premium pay for “overtime.”

So, for example, a common work schedule established by collective bargaining is one where employees work four 9-hour days and one 8-hour day (usually Friday) and then have every other Friday off. Employees will not be paid for the extra collectively bargained hours (typically four hours) they work every other week.

As another example, a common work schedule for nurses is a three 12-hour day schedule. The nurse (or another employee with this alternative work schedule) who works more than 12 hours in one day is owed double time for those excess hours. This is true even when the hours for that workweek may still not add up to 40 hours.

Most employees who are 18 years or older or 16 and 17 years and have legal authorization to leave school to work have the right to overtime pay in California, including some salaried employees. So, to answer this question more accurately, it is best to consider who is not eligible for overtime pay in Los Angeles.

The following employees do not have a right to overtime pay at an increased rate:

• exempt employees whose duties include executive, administrative, and professional capacities – these employees have a fixed salary equal to at least twice the minimum wage and include occupations like:
  • Chief Executive Officers
  • Chief Financial Officers
  • Senior Administrators
  • Lawyers
  • Doctors
  • Dentists
  • Engineers
  • Scientists
  • Artists;
• unionized employees, like professional actors or taxi cab drivers, subject to collective bargaining agreements that provide regular hourly pay rates of at least 30% more than the state minimum wage and a premium wage rate for all overtime hours;
• outside salespersons who are 18 years old or older, spend more than half their working hours away from their employer’s office, and sell services, goods, contracts, or the use of facilities; and
• workers in specific occupations governed by California’s wage orders that apply special overtime rules – these occupations include:
  • the public housing industry, like live-in household employees, personal attendants, camp counselors, managers of homes for the aged; 24-hour residential childcare providers; ambulance drivers and attendants;
  • agricultural workers, including seasonal workers;
  • an employer’s parent, spouse, child, or legally adopted child (e.g., kids working for their parents).

In Los Angeles (as well as throughout California), people who have on-call duties may be entitled to overtime. When can engage in personal activities while on-call, you will not usually be able to get overtime? When, however, you cannot engage in personal activities and must be able to get to work on short notice, then your on-call hours may be subject to overtime.

Factors to consider when determining if your on-call work is overtime work, consider:

• whether or not the employer requires you to live on-site;
• whether or not the employee can switch on-call duties with other employees;
• whether or not the employee can engage in personal activities;
• how much time the employer gives the employee to get to work after being called in;
• how far an employee is allowed to travel his or her place of employment while on control; and
• how often the employee is called into work while on-call.

It comes down to how much control the employer has over an employee’s “free time” while the employee is on-call. The less control an employee has over what, where, and when he or she can do something, the more likely he or she will be eligible for on-call overtime.

If you believe your employer did not pay you overtime owed to you, you want to make sure you keep a record of it. Identify the days and hours you worked and compare that to your pay stub or statement. Keep track of any other relevant information as well.

After you have identified the hours owed to you, you may want to first address the error to your supervisor or to the appropriate person in Human Resources. It may have simply been a mistake that can be rectified fairly easily.

In other cases, though, the employer may deny a mistake was made. At this time you should contact a lawyer for a free initial consultation to determine if you should file a complaint and seek recovery of your unpaid overtime.

If you believe you are owed overtime and your employer has denied payment of it (or you fear to confront for whatever reason your employer about the overtime), contact Sirmabekian Law Firm online or at 818-473-5003. We dedicate our practice to workers in and around the Los Angeles area who have been taken advantage of by their employers. We are committed. We are experienced. And we work hard to make sure your hard work is compensated fully and fairly.