WHAT IS THE RIGHT RATE OF PAY FOR OVERTIME?

The rules concerning overtime pay are more complicated than they seem. The basic rules that overtime is based upon 1.5 the nonexempt employee’s hourly rate is only the beginning. For most nonexempt employees overtime is calculated by multiplying the employee’s hourly rate by 1.5. The situation is somewhat different for employees who are paid bonuses, or are paid piece rate compensation.



The California Department of Labor Standards Enforcement (DLSE) has written, “All Goods Or Facilities Received By Employee Are To Be Utilized In Determining Regular Hourly Rate For Overtime Computation. Following the long-established enforcement policy of the DLSE (which closely tracks the federal regulations in this regard) housing benefits, meals, etc., are added to the cash wage paid for purposes of determining the ‘regular rate’ of pay.” For all you serious legal beagles, you might be wondering if DLSE interpretations are law. The Tidewater court held so long as a court can exercise its independent judgment, a court may consider the DLSE’s interpretation and the reasons the DLSE proffered in support of it, and we may adopt the DLSE’s interpretation as our own if we are persuaded that it is correct. Overtime law is complex. It is based upon case law, statutory law, regulations, Wage Orders, and sometimes on DLSE interpretations if the court utilizes its independent judgment to determine the DLSE interpretation is correct.

CALL 1-877-525-0700 TO HIRE AN EXPERIENCED OVERTIME LAWYER TO SUE FOR YOUR OVERTIME PAY MAKE YOUR OVERTIME PROBLEM OURS TO SOLVE

HOW IS OVERTIME CALCULATED IF YOU ARE PAID FLAT RATE BONUSES?

Under California law, in order to find one’s overtime rate when they are paid flat rate bonuses, the number of nonovertime hours actually worked in a pay period are divided into the value of the flat sum bonus. If the hours worked in the employee’s workweek fluctuates, they should not be penalized if they work more hours in one week than another thereby lowering their hourly overtime rate. The enactment of Labor Code § 515(d) indicates that the California Legislature also concluded that overtime rates should not fluctuate based upon the total number of hours worked in the workweek including overtime hours worked. The “fluctuating workweek” is not allowed.

The regular rate by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments. It is not an arbitrary label chosen by the parties; it is an actual fact. Once the parties have decided upon the amount of wages and the mode of payment the determination of the regular rate becomes a matter of mathematical computation, the result of which is unaffected by any designation of a contrary ‘regular rate’ in the contracts.

Federal law differs. Federal regulations provide a level of employee protection that a state may not derogate. Nevertheless, California is free to offer greater protection. One of the major differences between federal and state law in this area is the requirement in California that the premium pay for overtime is to be a penalty which creates a disincentive to employers to impose overtime on employees. An experienced California overtime lawyer will use California law in asserting overtime violations.

OVERTIME LAWYERS

Our overtime lawyers have achieved considerable success in single employee overtime cases, group overtime cases, class actions involving overtime, and overtime cases along with Private Attorney General (PAGA) penalties. Some of these case results include:

$800,00 for misclassified translators
$350,00 for a surgical nurse classified as an independent contractor

Our overtime lawyers are most likely to succeed in your claim if all or some of the following factors exist:

1) More than one employee is suing for overtime;
2) Time records show work of more than 8 hours in a day or 40 hours in a week and the paychecks simply do not show overtime was paid;
3) Overtime was paid only on a weekly and not daily basis;
4) The employee was misclassified as an independent contractor and never paid overtime;
5) The employer failed to pay overtime based upon all rates of pay such as flat rate bonuses;
6) Witnesses agree overtime was worked and not paid;
7) Overtime was worked off-the-clock but computer records demonstrate the employee performed tasks off-the-clock.