Employees have rights under federal and state law when employers fail to note or compensate them for overtime hours worked. Though federal and state overtime laws differ and even conflict, employees are protected by the law that is most favorable to them. In general, labor law in certain states, such as California, is more protective of workers than is federal law under the Fair Labor Standards Act (FLSA).

Typical Overtime Law Violations

Overtime issues often come up when:

  • An employer has improperly classified an employee as exempt, such as under the administrative, professional, or executive exemptions, and has thus failed to pay overtime
  • An employer has improperly classified an employee as in independent contractor, and has thus failed to pay overtime
  • An employer has failed to credit an employee with eligible time they worked, such as off-the-clock work, and this eligible time pushes the employee’s total hours over 40 per week, after which overtime rates are required

Federal Overtime Law

Federal labor law is governed by the Fair Labor Standards Act (FLSA). The FLSA requires that employees who work more than 40 hours per week receive overtime pay at a rate of one-and-a-half times their regular rate of pay.

Some states, such as California, require double pay for hours beyond a certain threshold (in California, 2x pay applies past 12 hours per day of work). The FLSA does not have an overtime pay scale above time-and-a-half.

FLSA employment lawsuits are sometimes less favorable to workers than lawsuits under California’s overtime protections because FLSA lawsuits are opt-in, which means that a notice must be sent to every single worker and they must write back in order to be included in the lawsuit.

In contrast, labor suits under California overtime law are opt-out, which means that if the employees who brought the lawsuit win a monetary judgment or settlement, a notice will be sent out to other employees asking them if they prefer to share in the recovery in the lawsuit or opt out.

Examples: Federal Overtime Cases

  • Un-tracked and Unpaid Overtime for U.S. Customs Enforcement Employees

Dog handlers who worked for the United States government in customs enforcement sued the federal government for failing to pay them time they spent preparing training aids for their dogs. The dogs need to be trained on a regular basis to alert at the smell of narcotics, and the training requires the preparation of special towels, scented with narcotics and hidden for the dogs to later find. The government did not pay the dog handlers for preparing or laundering the special towels. The court held that time spent preparing and cleaning the special towels was compensable under the FLSA, and since this time was spent on top of an already full (40 hour) workweek, the dog handlers were entitled to overtime compensation.

  • Off-the-Clock Work & Unpaid Overtime for NY Policeman

A police officer in the canine unit sued the New York town that employed him for failing to pay him overtime pay for off-the-clock work he performed in training, exercising, grooming, and feeding his patrol dog. The court held that this time was compensable time under the FLSA and the town was required to pay OT for hours that canine patrol officers spent caring for their police dogs.

canine police officer who won federal overtime lawsuit

  • Waiting Time & Unpaid Overtime for Oilfield Surveyor

An oil well surveyor who worked for Schlumberger, the world’s largest oilfield surveying company, sued his employer for failing to pay him overtime for time he spent waiting in the employer’s garage for mechanics to service his surveying equipment and vehicle, and for time spent driving from the garage to the well locations. The court held that this time was compensable under the FLSA and required Schlumberger to pay OT.

What baseline pay do you use for calculating overtime?

Under the Fair Labor Standards Act (FLSA), the overtime rate is time-and-a-half, which is 1.5x the “regular rate of pay.”

The “regular rate of pay” includes wages (or salary) and incentive pay (such as commissions or non-discretionary bonuses). Any payments from the employer that are not tied to an objective measurement are excluded from the regular rate of pay, such as gifts, bonuses, tips from customers, and expense reimbursements.

Many salaried employees are exempt from overtime protection, such as under the professional, executive, and administrative exemptions. But for nonexempt salaried employees, the regular rate of pay is salary plus non-discretionary bonuses divided by total hours worked. If the resulting hourly rate is lower than minimum wage, then minimum wage is used as the regular rate of pay for calculating overtime.

I’m a salaried employee. Am I entitled to overtime?

Salaried workers qualify for overtime pay as long as they are nonexempt employees (or are misclassified as exempt).

Salaried workers must be treated as “nonexempt” if they fall below a certain salary threshold ($455 per week under federal law). Salaried workers above this threshold may fall into one of the following exemptions:

  1. Executive exemption
  2. Administrative exemption
  3. Outside sales exemption
  4. Inside sales exemption
  5. Professional exemption
  6. Computer professional exemption

If none of the exemptions apply, you are entitled to overtime pay, despite being a salaried employee.

When must my employer pay me for overtime?

Your employer must pay you for overtime worked no later than the payday for the following pay period in which the overtime was worked. For instance, if you are paid weekly and work overtime during the first week of the month, your employer may hold those overtime payments until the payday for the second week of the month (which would occur within the third week of the month).

Featured Members of Our Employment Law Practice

Jason Gibbs

Founding partner of Gibbs Law Group LLP, Eric Gibbs has been selected for the peer-reviewed list of Best Lawyers every year since 2012.

Steven Tindall

An employment-law litigator with over 20 years’ experience, Steven Tindall is well-acquainted with the intricacies of overtime law. His largest recovery in a single employment case is $29 million.

Linda Lam

Prior to joining us at Gibbs Law Group LLP, Linda Lam worked at a national employment law firm, where she represented workers in lawsuits to recover unpaid wages and benefits.

Steve Lopez

Steve has prosecuted a variety of complex employment cases involving misclassification of independent contractors. He is fluent in English and Spanish.

Our Employment Law Practice

Gibbs Law Group LLP is consistently ranked on U.S. News’  list of “Best Law Firms.”

The attorneys in our employment law practice have all be selected as 2018 Northern California Super Lawyers or Risings Stars.

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