Overtime laws do not apply to some types of employees. Those employees are known as “exempt,” and will not receive overtime pay, even if they work more than their scheduled hours, more than eight hours a day, or more than forty hours a week.
Whether or not you can receive overtime pay usually depends on the kind of work you do. Employees who are exempt from (not covered by) overtime laws usually have a lot of responsibility within a company and have significant input into how that company is run. Some employees are exempt because they work in an industry where work hours are so irregular that calculating overtime would be impossible. You are not exempt just because your employer says you are exempt or because your employer gives you a certain title (for example, “assistant manager”), or pays you in a certain way.
Exemptions from overtime law generally fall into five major categories. All five are described below. You should read through each category to see if any describe the kind of work you do. The definitions of exempt employees are very complex, and you may not be certain if a particular category applies to your work. If you have further questions, you should contact the California Department of Industrial Relations/Division of Labor Standards Enforcement (“Labor Commissioner”) in your area for more information.
State or federal overtime laws do generally not cover employees who are considered “professional.” To be considered a professional employee, you must be licensed or certified in:
You must also spend at least half of your work time performing duties that are typical of your profession.
Finally, you must also meet the “salary basis” test, which means that you also must receive a salary that is at least twice the minimum wage for full time work (as of January 1, 2007, $(2,600 per month, or $33,280 per year; as of January 1, 2008, $2,733.33 per month or $33,280 per year).
Also, under California state law, you may be considered a professional if you meet the salary basis test noted above and you spend at least half of your hours doing work in a field that is commonly considered a “learned or artistic profession.” For your job to be considered “learned or artistic,” you must usually have earned a college degree or pursued other paths of intellectual study. Also, your work must be original and creative in character and depend primarily on your own invention, imagination, or talent. Some high-tech and computer industry workers will fall into this category. This exception is very limited, so you should not assume you qualify just because your job involves some creativity.2. Exemption for Administrative Employees
If the work you do is mostly administrative, you may not be protected by overtime laws. However, for your work to be considered administrative, it must meet all of the following qualifications:
If you do not meet any one of these qualifications of an administrative employee, you are not exempt.
Also, to be considered an administrative employee, you must do at least one of the following:
If you are a managerial or executive employee, the work you do may not be protected by overtime laws. However, you are only a managerial or executive employee if you meet all of the following qualifications:
If you do not meet any one of these qualifications, you are not a manager and are not exempt.4. Exemption for union employees If you are a union member, you may not be protected by overtime laws because of language included in your collective bargaining agreement (CBA). If your CBA establishes a minimum wage for workers at your company that is at least 30% more than the legal minimum wage, you are exempt from overtime laws. As of January 1, 2007, minimum wage in California is $7.50 per hour. This means that if you are paid $9.75 or more per hour (as of January 1, 2007) or 10.40 or more per hour (as of January 1, 2008), overtime laws do not apply to you. You may have the right to overtime included in your CBA, but the terms set out in your CBA might be different than the law for non-union employees. 5. Industry-specific exemptions
Some other categories of jobs are exempt from California state overtime law. These jobs include:
First, you should keep a detailed record of the hours you are working and the tasks that you perform.
You should then calculate the overtime pay you are due. (See our Fact Sheet Overtime Pay for information on calculating an overtime claim).
If your employer refuses to give you overtime pay to which you are entitled, you can also file a claim for your overtime wages with the California Department of Industrial Relations, Division of Labor Standards Enforcement (“Labor Commissioner”). For more information, see our Fact Sheet Do-It-Yourself Recovery of Unpaid Wages: How to Represent Yourself Before the California Labor Commissioner.
Your employer may not “retaliate” (fire, demote, suspend, etc.) against you for asking for overtime pay you believed you have earned, or for filing a claim with the Labor Commissioner. If you believe your employer has retaliated against you, contact the Labor Commissioner. You have six months from the date of the violation (for example, the date you were fired) to file a claim with the Labor Commissioner.