Frequently Asked Questions about Overtime Pay

Under the federal law known as the Fair Labor Standard Act ("FLSA")and California state law, all employees are entitled to receive one and a half times their normal hourly wage for all hours worked in a week over 40 unless they fit into certain defined exceptions to the law. The courts have said that these exceptions are to be "narrowly construed" and many employers get away with broadly construing them until challenged by employees.

Executive Employees: An executive employee is one whose primary duty is to manage the employer or one of its subdivisions or departments and who spends a substantial amount of time supervising and directing the work of at least two employees. Administrative Employees: An administrative employee is one whose primary duty is office or non-manual work directly related to the management policies or general business operations of the employer and who, in the course of this work, customarily and regularly exercises discretion and independent judgment. It must be emphasized that this exemption is frequently overused by employers, and that an individual whose work is directly related to providing the service or product the employer provides its customers is not performing services related to "general business operations" of the employer and is not exempt. Further, "discretion and independent judgment" are very specifically defined in the law and an employee who makes decisions based on regular, well-defined protocols is not exercising it for FLSA or state law purposes. Professional Employees: A professional employee is one whose primary duties consist of work which requires knowledge of an advanced type in a field of science or learning customarily obtained by a prolonged course of study and who consistently exercises discretion and independent judgment in the performance of that work. In addition, under California law, an individual who works in a field where the state issues professional licenses may not be exempt from the receipt of overtime pay unless s/he actually has the license.

Even if an employee's job duties meet the test for exemption from the payment of overtime, in order to qualify for the exemption, the employee must also be paid on a genuine salary basis. What this means is that the employer must establish that the employee receives a basic weekly salary of a "predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed." Thus, for example, it has been held that if your pay is governed by a regular employer policy which can result in pay reductions for absences from work of less than a day or disciplinary suspensions of less than a week for reasons which are not safety related, then you are not being paid on a genuine "salary basis" but on an "hourly basis." Under those circumstances, the employer may not be entitled to claim that you are exempt from the payment of overtime, even if your job meets the duty requirements described above.

Under the FLSA, employees who should have been paid overtime, but weren't, are entitled to receive the pay which they should have received from (depending on the circumstances) two or three years before the filing of a lawsuit under the FLSA, and continuing forward until the practice is remedied. In addition, under appropriate circumstances, employees may receive "liquidated damages" equal to, and in addition to, the amount of wage loss received. There are similar provisions under California law.

The employer should be keeping detailed records of all hours worked. However, if the employer has not kept such records, any credible evidence can be provided by you, including testimony, logs establishing when you signed in and out of work, personal diaries or other data.

No. The FLSA specifically states that it is unlawful to retaliate against an individual for filing a claim for overtime wages. This includes unsuccessful claims, so long as they are brought in good faith.