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Unpaid Overtime — Insight From Expert Wage & Hour Attorneys

Unpaid Overtime

Failing to compensate employees for all overtime hours worked is one of the common wage and hour violations. It is wage theft and hence illegal. Despite this, some employers continue to take advantage of their workers. As a California employee, you have rights and you are entitled to protect yourself and your hard earned wages.

Overtime provisions in California state that a nonexempt employee who is 18 years of age or older — or a minor employee who is 16 or 17 years of age and is not required to attend school, and/or is not prohibited by law from participating in the subject work — cannot be employed for more than eight hours in one workday or for more than 40 hours in a workweek, unless that employee receives 1.5 times their regular pay rate for all hours that are worked over eight hours in a single workday and over 40 hours in a workweek.

Employers are required to pay their employees for all hours worked — including overtime. They must also pay their employees at regular intervals, such as biweekly or semimonthly. Employers who do not pay their employees are subject to penalties and even criminal prosecution.

Who Qualifies for Overtime Pay in California?

Wage theft is more commonly seen in non-union workplaces. This is because a union worker will be paid according to their negotiated contract, and any instances of wage theft are immediately challenged by the union. Wage theft is often reported in the following sectors:

  • Janitorial services 
  • Agriculture
  • Restaurants
  • Poultry processing
  • Garment manufacturing
  • Retail

However, only non-exempt workers are required to be paid overtime wages if they work overtime. It is against California labor law for an employer to fail to pay an employee for overtime work. Non-exempt workers include people employed in professional, technical, clerical, mechanical, and similar occupations whether paid on a time, piece rate, commission, or other basis. Employees classified as exempt do not qualify for overtime pay. 

Exempt employees can include white-collar workers, independent contractors, and employees earning commissions. Some employers may incorrectly classify a non-exempt employee as exempt. In other cases, however, an employer may misclassify an employee as exempt in order to avoid paying overtime. 

Non-exempt employees who do not have an alternative workweek schedule are entitled to overtime pay if they work:

  • More than eight hours in a single workday;
  • More than 40 hours in a single workweek; or
  • More than six days in a single workweek

Employees who qualify are entitled to minimum overtime pay at one and one-half times their regular hourly rate of pay. Also, work in excess of 12 hours in a single workday, or in excess of eight hours on the seventh day of a workweek is paid at double the regular hourly rate of pay. 

Even if the employer does not require overtime work, employers may owe employees overtime pay as long as the employer allows the employee to perform the extra work.

Moreover, your employer can’t retaliate or discriminate against you in any way, shape, or form for filing or threatening to file a wage claim. If this happens, you can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. 

“Off The Clock” Work Is Illegal

California laws dictate that it is illegal for employers to require employees to work off the clock without compensation. Work off the clock is work that employees do, with their employer’s knowledge, but without pay. California law does require employers to pay for work off the clock done. 

Unfortunately, many employers often take advantage of their employees by violating wage and hour laws and not paying them their hard earned wages and overtime pay.

Off-the-clock work varies by employer and industry. Examples of work off the clock can be:

  • Pre-shift work. Such as preparing a restaurant to open or preparing safety equipment.
  • Post-shift work. Such as clean-up or delivering equipment to a new location.
  • Administrative work. Such as completing paperwork or undergoing training.
  • Rework, like correcting mistakes on a project at the employer’s request.
  • Lunchtime or Break. Meaning any work done during an employee’s required meal or rest break.
  • Waiting times. Let’s say an employee shows up to work on time and is waiting to be assigned work. This time should be compensated. If the employee shows up 30 minutes before their shift starts, that doesn’t qualify for compensation. 

Work done off the clock is compensated at the employee’s regular hourly wage. If any off-the-clock work is performed that puts the employee over the maximum number of work hours, the employee is eligible for overtime pay.

Reporting Unpaid Overtime

First of all, make sure to communicate with your employer before taking any action, and ask them for an explanation. This will help determine whether a processing error or even a bank mistake was responsible for your reduced or missing wages and not because your employer just did not want to pay you. 
If there was indeed a clerical mistake, your employer should voluntarily agree to cover any charges you incurred as a result of their mistake. Engaging in dialogue also has the added benefit of showing you didn’t fail to submit records for your hours worked.

However, if there is an established pattern of not being paid on time your overtime wages, or if it’s apparent that you have not been paid on purpose, you can contact the U.S. Department of Labor’s Wage and Hour Division (WHD). This agency is responsible for administering and enforcing many of the nation’s important worker protection laws. 
Finally, an employment lawyer with West Coast Employment Lawyers is always here to help you understand your rights if you were the victim of wage theft in the workplace.

Under federal law, any employer who violates provisions of the Fair Labor Standards Act (FLSA) overtime wage laws is liable to the affected employee in the amount of their unpaid minimum wages or overtime compensation. In addition, the employer may be liable for an additional equal amount as liquidated damages.
Even if your unpaid overtime is not a lot of money, that doesn’t mean you should allow your employer to take advantage of you and avoid filing a lawsuit. An employer should always be held accountable for any violations of California labor laws. 
In most cases, the statute of limitations for California wage and hour lawsuits is three years from the date of the most recent violation.

In a lawsuit for unpaid wages related to overtime pay, the aggrieved employee may be able to collect damages for:

  • Unpaid wages
  • Interest on the unpaid wages
  • Court costs
  • Attorney’s fees

In cases when an employer violates federal labor laws under the FLSA, the employee may also be able to collect liquidated damages equal to the amount of unpaid wages, or double damages. Liquidated damages include an amount equal to the unpaid wages plus interest. Double damages are awarded when the employer’s overtime pay violation was not due to a good faith error.


The best course of action is to secure legal advice immediately upon determining that unfair treatment has or is occurring at your workplace. The wage and hour lawyers at West Coast Employment Lawyers will do everything possible to construct effective arguments to win your case. Our attorneys are committed to helping victims of wrongful termination receive full vindication, fair compensation, and the peace of mind they deserve.
If you or a loved one has been wrongfully terminated at work, immediately contact West Coast Employment Lawyers for a free, no-obligation consultation with a disability discrimination lawyer at our firm. You can reach our legal team 24/7 by calling 213-927-3700 or emailing [email protected].

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