Vincent W Davis

Unpaid Overtime

Unpaid Overtime – Work That is “Off the Clock,” or simply Not Paid…

Unpaid Overtime – Work That is Off the Clock, or simply Not Paid…In situations where employers admit that their employees have the right to overtime, many of these employers still fail to pay them properly for all overtime or other hours worked. For example, many employers may refuse to pay for working at home, being on call, attending meetings, work-related travel time, and time changing into and out of uniforms or special work-related gear. Failure to pay for these types of work-related activities may also violate state and federal minimum wage laws.

Common Unpaid Overtime Violations

Insisting that employees work off the clock

Employers / supervisors may insist that workers to “clock out” and finish their work. It is not hard to envision a scenario such as: “I want you to stay until your tasks are completed, and I’m not paying you for it since your should have gotten it accomplished during your shift like everybody else.”

Misclassifying employees as “exempt” from overtime laws

For an employee to be “exempt” from typical overtime laws, that employee must generally be an executive, an administrator, or a professional employee. Employers attempting to take advantage of employees will attempt to classify workers into these supervisor or administrator categories even when the job duties are anything but, and the law does not allow for it.

One of the common misconceptions held by both employees and employers is that companies do not need to pay overtime —or give meal breaks— if they call their workers “exempt” and pay them a salary. Paying a salary and giving a worker an “exempt” title do not excuse employers from following employment laws. Employers must meet stringent requirements showing that the workers that they claim are “exempt” are true executives, professionals, or administrative employees or that they fall very-specifically within other specific exemptions to state and federal laws.

Almost all employees are entitled to overtime compensation when they work more than 40 hours in a week or 8 hours in a day. California law requires that employees receive overtime pay for all hours after 8 hours in a day and 1 additional hour of pay when you have to work through your meal break and/or an additional 1 hour of pay when if you are denied a lawfully-required 10-minute rest period. It is common that many employers often try to avoid paying overtime and meal period pay by misclassifying their employees as “exempt” from the overtime laws.

Independent Contractors

Employers will often improperly classify their employees as “1099 workers” also know as “independent contractors” so as to avoid paying these actual employees minimum wage and/or overtime compensation. Just because an employer chooses to use of an IRS Form 1099, does not mean that the worker meets the lawful definition on an “independent contractor.” There are several factors that are considered in determining whether you have been improperly classified as an independent contractor.

Here is just one list of “tests” from the California Department of Industrial Relations – Independent Contractor —OR— employee:

  1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
  2. Whether or not the work is a part of the regular business of the principal or alleged employer;
  3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
  4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
  5. Whether the service rendered requires a special skill;
  6. 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;
  7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
  8. The length of time for which the services are to be performed;
  9. The degree of permanence of the working relationship;
  10. The method of payment, whether by time or by the job; and
  11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

Denying a worker overtime pay because it was not “approved” in advance

Does your supervisor tell you or your co-workers that you cannot work overtime (or be PAID for overtime) unless it is approved? Does your supervisor ever tell you that they will not pay your for the hours you work (or HAVE WORKED) because it was not approved in advance. Employment law is clear that if your supervisor knows you worked, (or reasonably should have know that your worked), you are entitled to your wages and any overtime that may have accrued as well.

Paying a worker “straight time” rates for overtime work

For example, if an employee’s normal hourly rate is $20 per hour, then he or she is entitled to $30 per hour for overtime hours. Some employers, in total violation of state and federal law, will only pay their employees “straight time” of $20 per hour no matter how many hours in a day or workweek they work. If this describes your situation you may be entitled to thousands of dollars of back pay.

Failing to count the “real” hours an employee works.

Many employers will fail to count travel for their employees; fail to pay employees for the rest breaks employees are legally entitled to, nor fail to give employees 30-minutes for a meal break “free from duty, or stand-by” for lunch breaks. These are just a few examples.

Assistant Managers / Shift Supervisors

Borders Books learned a lesson the hard way. Borders agreed to pay $2.2 million dollars in settlement when a class-action lawsuit was files by two former assistant managers of Borders stores here in California, charging that the retailer should have paid them overtime. Borders contended that because their job title was assistant manager, (but their actual work was often the same as any other hourly worker) that these “assistant managers” were exempt from overtime, no matter what duties they performed. The truth is, that many employees with job titles such as “assistant manager” or “shift supervisor” believe they are not entitled nor eligible to receive overtime pay as their job title suggests that some of their duties are supervising others, but that may not be the case. Shift supervisors or assistant managers who do not regularly supervise 2 or more employees; who do not have the authority to hire or fire employees; or the majority of their time is doing the exact same duties as the employees they supervise may, in fact, be eligible for overtime pay and BACK OVERTIME PAY that may add up to significant money.

Automated Time Clock Systems

Technology is becoming cheaper and an increasing number of employers are now using efficient and inexpensive computerized timekeeping systems to keep track their worker’s hours. Many of these computerized time-clock systems are programmed to automatically clock employees in and out at predetermined times and/or to automatically dock an employee for a meal break for a set duration of time. In reality, however, most employees will stray far outside of these cookie-cutter presets. Reality suggests that the competent employees will arrive at work early, stay late, or take shorter lunches than the system docks them for —of their own accord, or because the employer pushes them to perform. These automatic time clocks have no way to record this extra work time, and therefore many employees will never receive the actual wages they are owed.

Moreover, some employers (like Sees Candies in a recent California Supreme Court Trial) will use computerized time clocks that will round and employees’ starting and stopping times to the nearest quarter of an hour or so. So if a worker, wanted to not be late, clocks in at 7:47 AM, and begins to work will be “docked” for the 13 minutes if the time clock “rounds-up” to 8:00 AM. The Fair Labor Standards Act (FLSA) requires that these employer rounding policies be designed to be neutral and that they average out so that the actual time worked by an employee is properly counted. Obviously then, if a particular companies’ time clock rounding policy were proven to favor the employer the majority of the time, there would be an opportunity to make a claim against that employer for all of the employees treated unfairly.

Unpaid Overtime Summary

California employees go to their jobs expecting to get paid. When their paychecks routinely fail to add up to the actual hours worked, it is often because their employers are violating either state or federal law —or BOTH. Many employees are grateful to have a job in this bad economy, and though find themselves being taken advantage of, are afraid to protest against unlawful employment abuses. If you find yourself in this sort of situation, you need to know that it is unlawful for any employer to retaliate against employees for pursuing their lawfully-earned overtime wages, or even filing a claim to an outside government agency or contacting an employment attorney. Powerful laws protect employees from wage and overtime abuses perpetrated by employers who are trying to cut corners or profit unfairly on the backs of their employees. Most overtime and wage disputes involve one or more of the following issues:

  • Salary
  • Minimum wage
  • Vacation pay
  • Commissions
  • Unpaid overtime
  • Unauthorized deductions
  • Reporting early, staying late, extra tasks
  • Employee misclassification
  • Payment for “on call” or “stand-by” status
  • Accumulated sick or medical leave

Contact a California Labor Law Attorney

If you find yourself with wage or overtime disputes in California, contact an employment attorney at Vincent W. Davis & Associates to set up a no-cost, no-obligation consultation for a thorough assessment of your unique situation. Most employment issues can be preliminarily discussed by phone, and then if it is necessary to visit us in person, we have several conveniently-located offices in and around the Southern California counties and cities including, but not limited to:

  • Los Angeles
  • Los Angeles County
  • Orange County
  • Riverside County
  • San Bernardino County
  • Santa Ana</li
  • Beverly Hills
  • Anaheim
  • Irvine
  • Long Beach
  • Pasadena
  • And more…

Arcadia Office
150 N. Santa Anita Ave,
Suite 200
Arcadia, CA 91006
Phone: (626) 446-6442
Fax: (626)-446-6454


Beverly Hills Office
9465 Wilshire Blvd.
Suite 300
Beverly Hills, CA 90212
Phone: (310)-880-5733


La Mirada Office
Cerritos Towne Center
17777 Center Court Drive ,
Suite 600
Cerritos, California, 90703
Phone: 888-888-6542


Los Angeles Office
Gas Company Tower
555 West Fifth Street,
31st Floor
Los Angeles, California, 90013
Phone: (213)-400-4132


Long Beach Office
Landmark Square
111 West Ocean Blvd.,
Suite 400
Long beach, California, 90802


Irvine Office
Oracle Tower
17901 Von Karman Avenue,
Suite 600
Irvine, California, 92614
Phone: (949)-203-3971
Fax: (949)-203-3972


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Lakeshore Center
3281 E. Guasti Road,
7th Floor
City of Ontario, California, 91761
Phone:(909)-996-5644


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Turner Riverwalk
11801 Pierce Street,
Suite 200
Riverside, California, 92505
Phone: (909)-996-5644


San Diego
Emerald Plaza
402 West Broadway,
Suite #400
San Diego, California, 92101
Phone: (619)-885-2070


Aliso Viejo
Ladera Corporate Terrace
999 Corporate Drive,
Suite 100
Ladera Ranch, California, 92694
Phone: (714) 721-3822