Employees have a right to hire an employment attorney to assist or advise them with any of these options. It is often a good idea to do so, rather than trying to handle it alone. Employees who choose to pursue a remedy for unpaid overtime will need to decide whether to seek relief under federal or state law. Both federal and state law allow an employee to recover unpaid overtime that the employee earned.
Federal law allows the amount of unpaid overtime to be doubled as a penalty for a failure to pay overtime. Whether it is better to seek a state or federal remedy, and whether it makes sense to file an administrative claim or a lawsuit, will depend on the facts of the case. Stephanie Plancich, et al. Huntington Memorial Hospital v. Superior Court Cal. McKissick Products Co. Industrial Welfare Com. Superior Court of Kern County 27 Cal.
Superior Court 53 Cal. See 29 U. Sullivan v. Oracle Corp. Code of Regs. See Cal. Code Regs. Labor Code, , subd. See, e. See Tidewater Marine Western, Inc. Bradshaw 14 Cal. Seymore v. Metson Marine, Inc. Department of Industrial Relations Cal. Note that this calculation may differ from the calculation of the regular rate under federal law. Skyline Homes, Inc. Department of Industrial Relations , supra , Cal. California employees will usually be entitled to calculate their regular pay under California law because it is more favorable to employees than federal law.
Walling v. Youngerman-Reynolds Hardwood Co. The Huntington Memorial decision relied on 29 U. See e. Royal Packing Co. Morillion v. This accomplished nothing apparent in the record other than the elimination of overtime. Monzon v. Schaefer Ambulance Serv. The authorized rest period time shall be based on the total hours worked daily at the rate of ten 10 minutes net rest time per four 4 hours or major fraction thereof.
See Gomez v. Lincare, Inc. Gomez v. City of Madera 36 Cal. See Seymore v. Networkers Internat. First, you need to determine the start and end of your workweek.
Employers are responsible for setting the workweek. The default workweek begins on Sunday and ends on Saturday, but your employer can set an alternative workweek so long as the workweek is not set in a manner designed to avoid overtime obligations.
Below are a couple of examples:. After you have determined your workweek, count how many hours you worked each day. Most workers in California are entitled to 1. Ex: You can usually figure out your regular hourly rate by dividing a weekly, monthly, or annual rate by the hours you worked during that time period.
If you worked more than a hour work week, divide your weekly rate by 40 hours or your yearly rate by hours 40 hours by 52 weeks.
If you do not know exactly how many hours you worked, make your best estimate. Your employer has an obligation to maintain detailed records about your employment, you can amend your claim after receiving records from your employer. Legal Aid at Work offers a free template you can use to send your employer a records request letter. Legal Aid at Work may be able to help calculate your wages owed through our wage claim clinics. To have the best chance of recovering the money you are owed try and keep your own written record of the hours you work and keep any paperwork e.
Under California law, when an employee has not been paid for all hours worked, the employee can collect two types of damages. First, the employee can collect the difference between the amount the employer paid him and the agreed upon rate as actual damages.
If the agreed upon rate was below the minimum wage, the employee can collect the difference between the amount the employer paid him and the minimum wage as actual damages.
These penalties, which go to the employee, can amount to up to 30 days of the daily wage you were entitled to under the law. Anna was terminated on May 1, , and as of August 1, she has not received the wages she is owed for her last two weeks of employment.
In this scenario, Anna has been waiting for longer than 30 days to receive her last paycheck, however waiting time penalties cap at 30 days. Normally, three years. Through the Labor Commissioner, you can collect unpaid wages for work you performed up to three years before you file a claim. Because of COVID, if you are owed wages after April 5, , you may in some situations be able to file a wage claim to recover those wages even if the wages have been owed for more than three years.
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Your session has expired. Please log in as a SHRM member. Cancel Sign In. With a successful wage claim against an employer, you may be entitled to receive the wages you are owed, your legal fees, compensation for your emotional distress, and additional damages. You will certainly be entitled to justice. California has no tolerance for dishonest employers, so if you are being cheated, you can put the law to work for you. However, you are the person who must take the first step and call a San Francisco employment rights attorney.
Frederick J. His legal practice is entirely devoted to litigation. Geonetta has spent the past 25 years in private practice representing both plaintiffs and defendants who have been harmed or wronged by the actions of others or who have been falsely accused of causing harm to others.
He represents clients across the U. What Pay is Required for Overtime? Requiring employees to work more than eight hours in a workday or beyond six days in a workweek is legal provided that employees are paid: 1.
What About Unauthorized Overtime?
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