A common question employment lawyers get is: “I get paid a salary but I work 50, 60, 70 hours a week. Should I be paid overtime?”
As with most legal questions, the answer is far more complicated than the question. But this article attempts to outline the answer without too much legal gobbly-gook.
One of the biggest myths about overtime in California is that people who are paid a salary are never entitled to overtime. The sad fact is that many people who are paid a salary by their employers are entitled to overtime and don’t receive it, and even more are paid hourly but don’t get any overtime because they work for dishonest companies with shady time-keeping procedures. Thus, if someone tells you that you are not entitled to overtime just because you are paid a salary, they are dead wrong.
In California, everyone is entitled to overtime pay unless they first meet one of the legal overtime exceptions. These exceptions are called “exemptions” under the law. Think of an exemption as a test: if your job passes the test your employer gets rewarded and doesn’t have to pay you overtime; however, if your job fails the exemption, then you are rewarded with overtime. I italicized “job” to emphasize that the test is dependent on your job functions, not on your personal capabilities.
Employers sometimes find it difficult pass an exemption for your job. Undeterred, many companies claim that your job meets the exemption when, in reality, it doesn’t. They do this because they don’t want to pay you the hour. It’s so much easier to pay you a salary – there are no time cards, variable monthly payments, and no overtime.
The next question becomes, what are these exemptions and does your job meet one of them? There are four major exemptions: “administrative,” “executive,” “professional,” and the “computer software professional.” If your job doesn’t meet the requirements for one of these exemptions then you are entitled to overtime pay.
I mentioned in an earlier post that I would post more information on the California Supreme Court decision Brinker Restaurant Corp. v. Superior Court. The Brinker decision was huge in the employment law world. It clarified some of the most tricky wage and hour issues.
Here are a few of the important rulings:
Lunch breaks: An employer is supposed to give a 30 minute uninterrupted meal break to employees who work more than five hours. An employers obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires. The employer does not need to ensure that no work is done. An employer cannot discourage or impede meal periods. If the employer has the employee do work during his or her lunch break, the employee must be paid for it. If the employer relinquishes control and the employee decides to keep working with the employers knowledge, then the employer must still pay the employees hourly rate, but not an additional premium. For those who like bullets:
- Employees who don’t work more than 5 hours don’t get a meal period.
- Employees who work over 5 but not more than 6 hours get a meal period, unless they’ve waived it in writing. If they don’t waive it, the meal period must begin by the end of the 5th hour.
- Employees who work more than 6 but not more than 10 hours get a meal period regardless of whether there’s a waiver. The meal period must begin by the end of the 5th hour.
- Employees who work more than 10 hours get a second meal period. If they don’t work more than 12 hours they can waive the second meal period. If they don’t waive it, the meal period must begin by the end of the 10th hour.
What are wage orders and why do they matter to an employer? Why do they matter to an employee?
For an employer, a wage order governs the wages, hours and working conditions in California. For example, Wage Order 02 guides an employer in the personal services industry on what to pay an employee, what employment records must be kept, when meal and rest periods are mandatory, and other details. Each wage order is meant to be self-explanatory but in reality is difficult and boring to read. Wage orders must be posted in the workplace at a location where employees can read them during the workday.