Unpaid overtime in California: what you are owed, and how to get it back.

When does California require overtime pay?

Labor Code §510 sets three triggers, and any one of them is enough. A non-exempt employee earns one and one-half times the regular rate of pay for:

• More than 8 hours in a workdayEven if you work fewer than 40 hours that week.
• More than 40 hours in a workweekHours are counted week by week. An employer cannot average two weeks together to make the overtime disappear.
• The first 8 hours on the seventh consecutive dayWhen you work all seven days of a workweek.

Double time, twice the regular rate, is owed for hours beyond 12 in a workday and for hours beyond eight on that seventh consecutive day. Here is how the daily rule plays out. Four 10-hour shifts add up to only 40 hours, but each shift includes two hours of daily overtime, so the week carries eight overtime hours. An employer can schedule 10-hour days at straight time only under a valid alternative workweek schedule. Labor Code §511 requires that schedule to be approved by at least two-thirds of the affected employees in a secret-ballot election. A schedule the employer simply announced does not qualify.

What is the "regular rate" and why is it so often wrong?

Overtime is not always time and a half of your base hourly wage. The multiplier applies to your regular rate of pay, and nondiscretionary extras must be built into it before the overtime is calculated. That includes production and attendance bonuses, shift differentials and commissions. In Alvarado v. Dart Container Corp. (2018) the California Supreme Court held that a flat-sum bonus must be divided by the non-overtime hours actually worked, not by all hours, which raises the overtime rate. An employer that pays overtime on base pay alone underpays every overtime hour, usually for everyone on the same payroll.

Salaried employees can be non-exempt too. When they are, Labor Code §515(d) sets their regular hourly rate at 1/40th of their weekly salary, and overtime is owed on top of the salary.

How does overtime go unpaid without anyone noticing?

Almost never through a single missing paycheck. It is usually a policy that shaves a few minutes or an hour at a time:

• Work before clocking in or after clocking outSecurity checks, booting up a computer, opening or closing the store, answering messages at home. In Troester v. Starbucks Corp. (2018) the California Supreme Court refused to excuse regularly recurring off-the-clock time as too small to count.
• Automatic meal-break deductionsThirty minutes is deducted every shift whether or not you actually got a break.
• Timecard rounding and edited punchesRounding that consistently favors the employer, or punches changed after the fact.
• Paying a salary to someone who is not exemptA salary alone does not remove the right to overtime. See below.
• Calling an employee an independent contractorUnder the ABC test in Labor Code §2775 a worker is presumed to be an employee. See wage & hour claims.

Are you really exempt from overtime?

The executive, administrative and professional exemptions have two requirements, and the employer has to prove both. The first is salary: under Labor Code §515(a), a monthly salary of at least twice the state minimum wage for full-time work. With the 2026 minimum wage at $16.90 an hour, that comes to $70,304 a year. The second is duties. You must be primarily engaged in exempt work, which §515(e) defines as more than half of your working time, and you must regularly use independent judgment.

Job titles decide nothing. An "assistant manager" who spends most of the day running a register, stocking shelves or covering shifts is usually doing non-exempt work, whatever the offer letter says. The same is true of many salaried coordinators, analysts and supervisors. Other exemptions, such as those for certain computer professionals and outside salespeople, have their own separate tests.

What if your employer did not keep accurate time records?

That is the employer's problem, not yours. Labor Code §1174 requires employers to keep accurate records of the hours employees work, and §226 requires every wage statement to show the hours worked. When the records are missing or unreliable, California courts let employees prove their hours by reasonable estimate. The employer must then disprove the estimate with precise evidence of its own. Hernandez v. Mendoza (1988) applied this rule to California wage claims. Your own notes, texts, emails, badge swipes and schedules all count as evidence.

What can you recover for unpaid overtime?

Labor Code §1194 lets an employee recover the full unpaid overtime in a civil action, plus interest, reasonable attorney's fees and the costs of suit. Depending on the facts, a claim can also include:

• Waiting-time penaltiesIf you have left the job and the overtime was never paid, Labor Code §203 can add up to 30 days of wages.
• Wage-statement penaltiesUnder Labor Code §226(e), when pay stubs misstate your hours or your pay.
• Federal liquidated damagesUnder the federal Fair Labor Standards Act, an equal amount on top of unpaid overtime (29 U.S.C. §216(b)). California's own liquidated-damages statute, Labor Code §1194.2, covers minimum wage but not overtime.
• PAGA penaltiesWhen the same practice affected other employees. See class actions & PAGA.

How long do you have to claim unpaid overtime in California?

Generally three years from each underpaid payday, under Code of Civil Procedure §338(a). When the same wages are also pleaded under the Unfair Competition Law, restitution can reach back four years (Business and Professions Code §17208). Waiting-time penalties follow the same deadline as the wages they arise from (Labor Code §203(b)). Wage-statement penalties under §226 have a one-year limit. Federal claims under the FLSA must be brought within two years, or three if the violation was willful. The clock runs separately for every paycheck, so each month of delay can cut off another month of recoverable pay.

Can your employer retaliate for asking about overtime?

No. Labor Code §98.6 prohibits firing, demoting or otherwise punishing an employee for complaining about unpaid wages or for filing a wage claim. Labor Code §1102.5 protects employees who report what they reasonably believe are violations of law. Retaliation is a separate claim with its own remedies. See discrimination & wrongful termination.

What should you do if you think your overtime was underpaid?

Start with the records. Keep every pay stub. Write down your actual start, end and break times going forward, and reconstruct past weeks as best you can. You have the right to request copies of your payroll records under Labor Code §226(b), and your employer must comply within 21 calendar days. You can request your personnel file under §1198.5, and your employer has 30 days to provide it. Do not sign a release or "settlement" of unpaid wages before you understand what you are giving up.

Then talk to a lawyer. Overtime cases turn on details: the right regular rate, the right exemption test, the right number of hours. Getting those details right is what the attorney's-fee provision in §1194 is designed to pay for. For more on how wage cases are handled and what they cost, see wage & hour claims.

We are prepared to discuss your case and determine what legal action should be taken — whether it is an individual claim or a case on behalf of everyone affected. We offer free consultations and charge nothing upfront. Our office is in San Diego, and we routinely handle cases in all State and Federal Courts throughout California — wherever in the state you live or work.