Overtime

The Carter Law Firm represents employees throughout California who have been improperly denied overtime wages. For working over eight hours a day or more than forty hours per week, employees are generally entitled to one and one half times their regular rate of pay. For working over twelve hours in a single day or for working a seventh consecutive day, employees are entitled to receive double pay.

Only salaried employees qualifying under "white-collar" overtime exemptions are exempt from receiving the overtime premium. Executive, administrative, professional, and outside sales employees are exempt from overtime requirements in California, provided they meet certain tests regarding job duties and responsibilities and are compensated "on a salary basis" at not less than stated amounts. See our exemptions page for more information.

Penalties and Damages

While the primary recovery sought in overtime cases is payment of the overtime wages themselves, California law also allows for the recovery of various forms of penalties as well as costs and attorneys' fees. These provisions are of significant benefit to workers considering bringing wage and hour claims, as the legal work involved in prosecuting such cases through trial and/or any necessary appeals can be substantial.

Employee versus Independent Contractor

Employers sometimes attempt to evade overtime laws by calling certain workers "independent contractors" as opposed to employees. The choice of terminology, however, is irrelevant - an "independent contractor" is actually an employee and may be entitled to overtime if one or more of the following factors are present:

  • Exclusivity: the worker works exclusively for the employer
  • Importance: the worker's services are an important part of the employer's business
  • Control: the employer controls the worker's hours and place and manner of work
  • Equipment: the employer pays for the worker's equipment, tools, and facilities needed to complete the work

Under California law, there is a rebuttable presumption that any worker is an employee, and specific proof must be provided of independent contractor status.

The most significant factor to be considered is whether the person to whom service is rendered (the employer or principal) has the right to control both the work done and the manner in and means by which it is performed. Additional factors that may be considered include:

  • Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
  • Whether or not the work is a part of the regular business of the principal or alleged employer;
  • Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
  • The worker's investment in the equipment or materials required by the task;
  • The worker's own employment of helpers;
  • Whether the service rendered requires a special skill;
  • The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
  • The worker's opportunity for profit or loss depending on his or her managerial skill;
  • The length of time for which the services are to be performed;
  • The degree of permanence of the working relationship; and
  • The method of payment, whether by time or by the job.

If you disagree with your employer's categorization of you as an independent contractor or exempt employee, contact the Carter Law Firm to discuss the possibility of recovering unpaid overtime wages to which you have been entitled.