California Overtime, Meal and Rest Breaks: What You Are Owed

Daily and weekly overtime

Under Labor Code §510, non-exempt employees in California generally earn one and a half times their regular rate of pay for hours worked over 8 in a workday or over 40 in a workweek, and for the first 8 hours on the seventh consecutive day of work in a workweek. Double time is generally owed for hours over 12 in a workday and for hours over 8 on the seventh consecutive day.

Federal law under the Fair Labor Standards Act only requires overtime after 40 hours in a week. Where both apply, the rule that is more protective for the employee generally controls. Some industries and alternative workweek schedules have special rules.

• Over 8 hours in a day or 40 in a week: 1.5 times the regular rate
• Over 12 hours in a day: 2 times the regular rate
• Seventh consecutive day: 1.5 times for the first 8 hours, 2 times after that

The regular rate is more than your hourly wage

Overtime is calculated on the regular rate of pay, which can include nondiscretionary bonuses, commissions and shift differentials, not just the base hourly wage. If your employer pays overtime only on the base rate while you also earn production bonuses, your overtime may be underpaid. Off-the-clock work, such as answering messages after a shift or putting on required gear before clocking in, can also count as hours worked.

Meal and rest breaks

Under Labor Code §512 and the wage orders, an employer generally must provide a 30-minute duty-free meal period before the end of the fifth hour of work, and a second one for workdays over ten hours, with limited waivers. Rest breaks of 10 paid minutes must generally be authorized for every four hours worked or major fraction of four hours.

If the employer does not provide a compliant meal or rest break, Labor Code §226.7 requires it to pay one additional hour of pay at the employee's regular rate for each workday the meal break was missed, and one for each workday the rest break was missed. Being told to stay on call, cut a break short or keep watching a register can mean the break was not really provided.

Salaried or a contractor? You may still be owed overtime

Being paid a salary does not make you exempt from overtime. California's executive, administrative and professional exemptions require both that you primarily perform exempt duties and that you earn a salary of at least a minimum level tied to the state minimum wage. A job title alone is not enough.

Workers labeled as independent contractors may also be employees under California's ABC test in Labor Code §2775, which presumes a worker is an employee unless the hiring business proves all three parts of the test. Misclassified employees can be owed overtime, break premiums and expense reimbursements.

Keep your own record

Employers must keep accurate time records and give itemized wage statements under Labor Code §226. Still, your own notes of start and end times, missed breaks and off-the-clock tasks, made at the time, can be strong evidence if the employer's records are incomplete. Keep your pay stubs and photos of posted schedules.