What Do I Do If I’m Not Getting Paid Overtime?
(and what does the Employer do if any employee may be owed Overtime Pay)
In California, non-exempt hourly employees must be paid overtime for hours worked over a certain limit, most often 8 hours in one day, or 40 hours in one week. For each hour worked beyond this threshold, an employee is entitled to receive one and one-half times his or her hourly rate (or double time above 12 hours per day). Employees are not permitted to waive overtime compensation in California. SO IF you are an employee and aren’t receiving your extra compensation for overtime – what do you do? IF you are an employer and are not sure you if all overtime pay has been provided to your employees – what do you do?
Option No. 1: Contact an attorney
This is the first option we suggest – – for both employees and employers – – as the questions that arise in these situations may be complex and may multiply as time goes on. Most private sector employees/ employers are covered by the CA state wage law, while public employees/employers are primarily covered by the federal Fair Labor Standards Act (FLSA) – – but sometimes both sets of law apply. In the case of ‘exempt’ employees, portions of neither law may apply. Most importantly, after the applicable law is determined a correct application of the facts at issue to the law must be done. Therefore, we recommend that the first step is to have your situation reviewed by an attorney to see if you have a claim for overtime or may owe your employees for overtime. You can contact Goyette & Associates for such review HERE
Option No. 2: File (or oppose) a claim with the Labor Commissioner
The California Department of Labor Standards Enforcement (DLSE) is charged with enforcing California wage and hour law. The DLSE website has a form you can fill out if you believe you are owed unpaid overtime. Once you have filed a claim with the local DLSE office, a Deputy Labor Commissioner will investigate your claim. The DLSE then has 30 days to do one of three things: 1) dismiss the claim because there is no overtime law violation, 2) call for a hearing, or 3) schedule a conference. Informal resolutions are often reached before the claim goes to hearing or conference. If the claim does go to hearing, both parties will present evidence and witnesses to testify. Within 15 days after the hearing, the Labor Commissioner will make issue an Order, Decision, or Award. Either party may at that point appeal the decision to civil court. For both employees and employers, Goyette & Associates long experience with wage claims has led to the same consistent rule: while attorneys are not required for Labor Commissioner proceedings, the employee represented by and attorney almost always obtains a good deal of the overtime pay sought, while represented employers end up paying out less than unrepresented employers in the Labor Commissioner process.
Option No. 3: File (or oppose) a claim with the Department of Labor
The Department of Labor (DOL) has jurisdiction to enforce the federal Fair Labor Standards Act (FLSA). The FLSA requires overtime compensation at a rate of one and one-half of the employee’s hourly wage for covered nonexempt employees working over 40 hours per workweek. If you are covered by the FLSA, and are being denied overtime compensation, you must go to your local DOL office and file a claim. The DOL investigator will evaluate the claim and determine whether to initiate proceedings to recover unpaid overtime.
The questions mount for employees who believe they are not being paid according to the law (and for employers facing such allegations). Which wage law applies, how are the facts properly applied to the right law, and how much overtime pay is owed are the core questions. The answers to these questions vary from one employee and employer to the next. If you are looking for answers, CONTACT Goyette & Associates.
