Under California law, employees are entitled to overtime wages for overtime work. Each non-exempt worker (which typically refers to hourly workers) in San Diego and the state of California must be paid time and a half or double time when their hours exceed eight and twelve per day, respectively. Independent contractors are not entitled to overtime pay.

Overtime is based on an employee’s regular rate of pay. The regular rate of pay is the money earned for the work normally performed by the employee. It includes earnings like salaries, wages, commissions, and piece-work payment. The regular rate of pay cannot be lower than minimum wage. 

Usually, the hours used to compute the regular rate of pay cannot be more than the legal maximum regular hours. In most cases, that means 8 hours per workday, 40 hours per workweek.

The computation of hours in a workweek can be complicated if it involves alternative workweek schedules or the hours of work vary. The agreed-upon will be used if they are less than the legal maximum regular hours. 

How is the Regular Rate of Pay Calculated in California?

The regular rate of pay can be calculated differently based on how an employee is paid (hourly, salaried, commission). A skilled employment law attorney can help you calculate the regular rate of pay that applies to your case. 

For employees paid on an hourly basis, the regular rate of pay is calculated using the hourly amount. Rate of pay calculations include shift differential pay and the per-hour value of the employee’s non-hourly earnings. 

Salaried employees follow a different formula. 

For salaried employees, regular rate of pay is calculated using these steps:

  1. Multiply monthly pay by twelve to determine annual salary
  2. Divide annual salary by fifty-two weeks to find weekly salary
  3. Divide weekly salary by forty legal maximum regular hours

This calculation leaves out non-monetary benefits that have financial value like health insurance and retirement contribution matches. Non-discretionary bonuses are included in the calculation.

Workers paid piecemeal or by commission can calculate the regular rate of pay using one of two methods. In one method, the piece or commission rate is the determinant, in the other method, hours worked drive the calculation. 

Method one assumes the piece or commission rate as the regular rate of pay. The worker earns 1.5 times that rate for the first four overtime hours in a workday and double that rate for every hour in excess of twelve worked in a workday. 

The second method divides the worker’s entire weekly earnings, including overtime pay, by the total hours worked during the workweek, including overtime hours. For each overtime hour worked, an employee is entitled to 1.5 times the rate of pay for hours in excess of eight in a single workday and double for hours in excess of twelve in a single workday.

What Can I Do If I am Not Being Paid My Rightful Overtime Wages?

If you are not receiving overtime pay as required by law, there are a few steps you can take. Some steps to resolve the issue:

  • Review your hours worked. Before taking any action with your employer, double-check the facts. Look again at your timesheet. If your employer’s system makes it difficult, or you believe their records are wrong, an employment lawyer may be able to help you.
  • Get in touch with Human Resources, if you have one. Not every company has a formal human resources employee or department. If there is one, they can help you look into the discrepancy and find out why your pay does not meet your expectations. If you don’t have one, bring it up to your immediate supervisor and ask who you should speak to in the payroll department. 
  • Follow up. Once you have made contact with someone representing your employer about the overtime pay, make sure to follow up. If they agree to make payment of disputed wages, make sure the amount is accurate according to your records.

No matter what industry you work in, whether it be customer service, oil and gas, or financial services, you are owed pay for working overtime. If you are unable to resolve your unpaid overtime wage issue on your own, you may need to engage an experienced employment law attorney for help. 

To learn more, call our San Diego law firm at (619) 693-7727 or contact us online.

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About The Author

Nicholas J. Ferraro

Nicholas J. Ferraro is a skilled labor and employment lawyer and the founder of Ferraro Vega Employment Lawyers, Inc. Based in San Diego, he focuses on representing employees in class action and collective litigation cases. Education: Mr. Ferraro attended the University of San Diego School of Law, where he was a member of the San Diego Law Review. Experience: Over a decade of legal practice, representing more than 100,000 employees. Court Admissions: Mr. Ferraro represents his clients throughout the State of California and the State of Washington. He is a member of the State Bar of California. Community Involvement: Active member of the California Employment Lawyers Association and the San Diego County Bar Association.