When must you start paying overtime to a nonexempt employee? The answer depends on what state you’re operating in. Overtime pay rules in California differ from the federal overtime laws. If you’re an employer in California, it’s important to understand when your overtime obligations begin.
Overtime in California: Defining the Work Day and Work Week
Any discussion about overtime has to start by defining the work day and work week. The work day is any predefined 24-hour period beginning at the same time each day. Similarly, the work week consists of 168 consecutive hours, starting with the first hour of the first work day in that week. Employers are free to set the standard work day and work week start and end times within these parameters.
“This is an area where a lot of employers don’t take advantage of a lot of the rules and of some of the discretion you have here. To be clear, you the employer can define what the work day is, and you the employer can define what the work week is. Why does that matter? How the work day and the work week are defined can affect overtime.
If you don’t define the work day and the work week, it will be defined in advance for you under or by operation of law – and it will generally be a Monday through Sunday and midnight through midnight.” Mark J. Jacobs and Ryan D. Wheeler explained in a recent CER webinar. A modified workday may be beneficial to you, depending on your standard work hours; it’s perfectly legal to do this, as long as you don’t change the work days or weeks back and forth.
Overtime in California: Daily Overtime Obligations
The federal standard for overtime pay only requires employers to pay overtime for hours worked in excess of 40 for a given work week. This is a weekly overtime standard. California overtime rules kick in on a daily basis instead. California state law requires overtime to be paid for any hours worked over 8 hours in a day.
Time and one-half must be paid:
- For work over 8 hours, up to 12 hours per day
- For the first 8 hours of the 7th consecutive day of work in the same work week
- For hours over 40 hours in the same work week (if the hours were not already paid as overtime otherwise)
Double time must be paid:
- For work over 12 hours per day
- For work over 8 hours on the 7th consecutive day of work in the same work week
An important clarification on the seventh-day premium: “The seventh-day premium does not mean that you get overtime just because you worked on the 7th day [in a row] . . . the seventh day premium only comes up if [an employee] worked all 7 days within that pre-defined, pre-determined work week.” Jacobs and Wheeler explained. The seventh day is always the last day of the employee’s work week—7 straight days across two work weeks, standing alone, does not qualify. That said, the extra pay on the seventh consecutive work day in the same work week still must be paid at the premium rate even if the work that week was not full-time hours.
This information was excerpted from the webinar titled “Exempt v. Non-Exempt in California: How to Evaluate Classifications to Determine If Employees are Entitled to Overtime.” To register for a future webinar, visit CER webinars.
Attorney Mark J. Jacobs is a partner in the Irvine, California, office of Fisher & Phillips LLP. He focuses his practice on defending employment-related lawsuits and administrative complaints on a variety of issues, including harassment, retaliation, and discrimination.
Ryan Wheeler is an associate in the Irvine office. His practice includes counseling and defending employers in all areas of labor and employment law.