Is Overtime Pay Required After 40 or 8 Hours?

Confusion. Five eight-hour days add up to a 40-hour week, with no overtime. Then, one day goes long or a project requires additional weekend work. Confusion mounts when employees work extra hours.

Federal pay policy states overtime is due when an employee works eight or more hours of approved overtime per day. The policy also states overtime pay accrues for 40 or more hours of approved overtime in a week. Sometimes these policies conflict and exceptions exist, so hourly employees find some surprises in their paychecks.

Exceptions to the Rule

Part of the confusion has a foundation in the exceptions.

• Approved compressed work schedules are an exception for overtime rules.
• Many positions are exempt from the Fair Labor Standards Act (FLSA)
• Mandated overtime employees get LEAP or AUO.
• Some individual situations pay overtime, while others get compensatory time off, and some get neither.

Overtime laws put employers under financial pressure to hire adequate staff. Employees bargain from a stronger position and avoid overwork. Paying overtime is costly, so overtime laws encourage employers to divide up the workload among a reasonable number of workers.

More Than 40 Hours of Work in a Week

Both the California Labor Law and the Federal Fair Labor Standards Act (FLSA) state that work performed in one workweek in excess of 40 hours is overtime. Employees are due one and a half times (1.5X) their regular hourly rate, starting at hour 41.

More Than 8 Hours of Work in a Day

Working more than 8 hours in a day offers the same overtime rate as over 40 hours in a week. Even if the employee works less than 40 hours in the week, long days provide additional compensation. If the long day extends to more than 12 hours, the rate increases to double the employee’s regular hourly rate.

No Days Off in a Week

California labor statutes have few exceptions to the day of rest rule. Labor Code §551-552 iterates the entitlement of employees to least one day’s rest every week. If employees do work seven days consecutively, they receive overtime pay for that entire day.

Employees Exempt From Overtime

Not every employee qualifies for overtime:

• Professional, administrative, and executive positions provide exemption from overtime if employees receive a monthly salary twice California’s minimum wage. Their duties must involve a type of exempt work, regularly exercising independent discretion and judgment. The duties and salary determine the exemption, not job titles or descriptions.

• Computer programmers and computer software industry employees are often exempt. Employees primarily engaged in creative or intellectual work requiring discretion and independent judgment have more flexibility. Exempt hourly wages begin at $45.41 ($94,603.25 annually) for full time employment for these highly skilled specialists.

• Outsides salespersons, customarily spending more than half their time away from the employer’s place of business, are exempt.

• Commissioned sales reps are exempt when they earn more than 1.5X California minimum wage. Commissions must constitute more than 50% of their compensation.

• Registered nurses usually only qualify as exempt if they meet criteria set for executive or administrative employees. Certified nurse midwives, nurse anesthetists, and nurse practitioners can be exempt otherwise.

• Caregivers and domestic workers include those providing care to children, the disabled, sick, or elderly persons, housekeepers, maids, and others. Domestic work does not include caring for persons in facilities, relatives, casual babysitters and others. Overtime does not apply.

• Personal attendant overtime falls under different rules than other caregivers. The healthcare industry recognizes personal attendants as part of the medical system. Live-in attendants and non-live-in attendants find their overtime entitlements vary. Longer daily hours (9+), and more hours per week (45+) form the basis of the differences.

• Unionized workers follow the collective bargaining agreement (CBA).

• Salaried employee situations vary.

Employees bringing overtime lawsuits, with proper proof, could recover an award or settlement. Damages add up quickly with back pay, injunctive relief, fees, and an amount equal to back pay for liquidated damages.