California Unpaid Overtime Attorney

Off-the-Clock Work

Employers must generally pay employees for work they require, permit, or know is being performed.

Off-the-clock work may include:

• Opening or closing duties
• Preparing equipment or workstations
• Completing paperwork after clocking out
• Attending required pre-shift meetings
• Responding to work-related calls or messages
• Finishing assignments during an unpaid meal period
• Undergoing required security or closing procedures
• Performing work remotely after the scheduled shift

California requires payment even when overtime was not formally authorized, provided the employer knew or should have known the employee was working. The employer may enforce a policy requiring advance approval, but it generally cannot refuse to pay for overtime already worked.

Employee Misclassification

Some employers avoid overtime by incorrectly labeling workers as exempt salaried employees or independent contractors.

Receiving a salary does not automatically eliminate overtime rights. A salaried employee generally remains entitled to overtime unless the employee satisfies the requirements of a recognized exemption or another specific exception applies.

Potential warning signs include:

• You are called a manager but have little meaningful authority.
• You spend most of your time performing the same work as hourly employees.
• You must closely follow established procedures.
• You exercise little independent judgment.
• You receive a 1099 but work under company control.
• You routinely work long hours without additional compensation.

Time Shaving and Edited Time Records

Time shaving occurs when an employer reduces or removes time the employee actually worked.

Examples may include:

• Changing clock-in or clock-out times
• Automatically limiting recorded hours to the scheduled shift
• Deleting overtime from timecards
• Moving hours into another workweek
• Instructing employees to record fewer hours
• Altering electronic time entries after submission
• Requiring employees to clock out before completing closing duties

An employer’s payroll records do not necessarily establish the hours actually worked when those records are incomplete or inaccurate.

Improper Rounding Practices

Some employers use time-rounding systems that adjust employees’ recorded start and end times.

A rounding practice may result in unpaid wages when it systematically reduces working time or does not fairly reflect the time employees actually spend working. Electronic systems that record exact time may also raise questions about why recorded minutes were removed before payroll was processed.

Incorrect Overtime Calculations

Overtime is generally based on the employee’s regular rate of pay, which may include more than the employee’s base hourly wage.

Depending on the compensation arrangement, the regular rate may include:

• Hourly earnings
• Salary attributable to the workweek
• Nondiscretionary bonuses
• Commissions
• Piece-rate compensation
• Shift differentials
• Certain incentive payments

California’s Labor Commissioner confirms that the regular rate may include hourly pay, salary, piecework earnings, and commissions. Federal guidance similarly provides that overtime calculations generally begin with total qualifying compensation divided by total hours worked.

Working from home does not eliminate an employee’s right to be paid for all compensable time.

Remote employees may perform unpaid work when they are expected to:

• Answer emails after hours
• Respond to work chats or text messages
• Take calls during evenings or weekends
• Log into company systems before a shift
• Complete reports after signing out
• Attend virtual meetings outside scheduled hours
• Perform recurring “quick tasks” without recording the time
• Remain actively engaged during an unpaid meal period

Brief tasks can add up when they happen repeatedly. Under federal law, hours worked generally include time an employee is required or allowed to work, including additional work performed away from the employer’s premises.

Employers should use reasonable timekeeping procedures for remote work and pay for hours they know or should know employees are performing.

Generally, yes.

An employer may require employees to obtain approval before working overtime and may discipline an employee who violates that policy. However, California law generally requires payment when the employer suffered or permitted the employee to work, meaning the employer knew or should have known the work was being performed.

An employer generally cannot avoid payment by saying:

• “You were not authorized to stay late.”
• “The budget did not allow overtime.”
• “You should have finished during your shift.”
• “Managers told everyone not to record extra time.”
• “You voluntarily answered the messages.”
• “You are responsible for keeping your hours below 40.”

The employer may address the policy violation separately, but it still must properly compensate the employee for qualifying work already performed.

Generally, no.

Federal overtime is determined on a workweek basis. An employer generally cannot average hours across two or more weeks to avoid overtime.

For example, an employee who works 50 hours one week and 30 the next generally cannot be treated as having worked an average of 40 hours per week. The employee may still be owed overtime for the 10 additional hours in the first workweek.

Under federal law, an employee’s workweek is a fixed and regularly recurring period of seven consecutive 24-hour periods. It does not have to begin on a Monday or match the calendar week.

Not necessarily.

California overtime is generally based on total daily hours, weekly hours, and qualifying seventh-day work—not simply whether an employee worked on a Saturday, Sunday, or holiday.

An employee may be entitled to overtime for weekend or holiday work when:

• The work pushes the employee beyond eight hours in a workday
• Total work exceeds 40 hours in the workweek
• The employee qualifies for seventh-day overtime
• A contract or employer policy provides premium pay
• Another applicable wage rule requires it

Federal law likewise does not require overtime solely because work occurs on a weekend or holiday.

California recognizes exemptions and exceptions for certain employees and industries.

Common exemptions may include qualifying:

• Executive employees
• Administrative employees
• Professional employees
• Outside salespeople
• Certain commissioned sales employees
• Certain computer professionals

Other special rules may apply to employees working under valid alternative workweek schedules, collective bargaining agreements, health care arrangements, transportation rules, and industry-specific wage orders.

An employer bears responsibility for correctly applying an exemption. A job title, salary, commission plan, or employment agreement alone does not determine whether an employee is exempt.

Employees may still be able to pursue unpaid overtime even when the employer’s records do not show all hours worked.

Useful evidence may include:

• Timecards and payroll records
• Work schedules
• Emails and text messages
• Workplace chat logs
• Computer login records
• Phone records
• Security or access records
• Calendars
• Delivery or route records
• Customer communications
• Photographs or timestamped files
• Personal notes recording hours
• Witnesses who observed the employee working
• Instructions from supervisors
• Evidence that time records were edited

Employees should preserve records they lawfully possess but should not take confidential, proprietary, customer, patient, or legally restricted material they are not authorized to access.

The compensation available depends on the hours worked, regular rate, duration of the violation, and related wage practices.

A claim may include:

• Unpaid overtime
• Unpaid double time
• Compensation for off-the-clock work
• Underpayments caused by an incorrect regular rate
• Interest
• Wage-statement penalties when available
• Waiting-time penalties for unpaid final wages when applicable
• Statutory penalties authorized by law
• Attorney’s fees and litigation costs when recoverable

A seemingly small daily shortage can become significant when it occurs repeatedly over months or years.

Yes. Unpaid overtime frequently results from a companywide policy affecting employees with similar jobs.

Common practices may include:

• Classifying everyone with the same title as exempt
• Automatically removing overtime from timecards
• Requiring pre-shift or post-shift work
• Excluding commissions or bonuses from the regular rate
• Using the same improper rounding system
• Requiring remote employees to remain available after hours
• Instructing employees not to report all time worked

When common policies affect multiple workers, the matter may support an employment class action or another coordinated claim.

An employer cannot lawfully punish an employee for engaging in protected wage-related activity, including requesting overtime, questioning timecard changes, filing a wage claim, or participating in an investigation.

Potential retaliation may include:

• Termination
• Reduced hours
• Demotion
• Unfavorable shifts
• Unsupported discipline
• Threats
• Harassment
• Negative evaluations
• Pressure to withdraw a claim

A retaliation claim may exist separately from the unpaid overtime claim.

Consider taking the following steps:

• Save pay stubs, timecards, and work schedules.
• Keep your own record of daily starting and ending times.
• Document work performed before clocking in or after clocking out.
• Preserve after-hours emails, messages, and call records.
• Save commission and bonus statements.
• Note when a supervisor knew you were working extra hours.
• Compare your records with payroll entries.
• Request explanations about missing time in writing.
• Review any severance agreement before signing it.
• Speak with an employment attorney promptly because filing deadlines apply.

The Kaufman Law Firm has represented California employees since 1993. Attorney Matthew A. Kaufman brings decades of experience to unpaid overtime, employee misclassification, retaliation, and employment class action matters.

Clients turn to our firm for:

• Personalized attention from an experienced employment attorney
• Detailed review of timekeeping and payroll practices
• Experience with individual and class-based wage claims
• Clear explanations of potential claims and options
• More than $50 million recovered for clients
• Free case evaluations