How Employers Try to Avoid Paying Overtime

Are You Getting the Overtime Pay You Deserve?

If you’re working more than 40 hours a week or over 8 hours a day in California, you may be entitled to overtime pay. However, many employers attempt to cheat workers out of their hard-earned money through illegal tactics. Whether it’s misclassification, wage theft, or pressuring employees to work off the clock, these violations are all too common.

In this guide, we’ll explore the most common ways employers avoid paying overtime, how to recognize if you’re being shortchanged, and what legal steps you can take to recover unpaid wages.

Overtime Laws in California: Know Your Rights

Under California Labor Code Section 510, employees are entitled to:

• 1.5x pay for any work beyond 8 hours in a single day or 40 hours in a workweek
• Double pay for any hours exceeding 12 hours in a single day
• 1.5x pay for the first 8 hours worked on the seventh consecutive day in a workweek
• Double pay for any hours worked beyond 8 on the seventh consecutive day

These laws protect workers from being exploited, but many employers attempt to work around them.

How Employers Avoid Paying Overtime

1. Misclassifying Employees as Independent Contractors

Some employers falsely label workers as independent contractors to avoid paying overtime, benefits, and payroll taxes. California’s ABC test helps determine whether a worker is truly an independent contractor. If your employer controls how you work and when you work, you may be misclassified and entitled to back pay.

2. Misclassifying Employees as Exempt

Not all salaried employees are exempt from overtime. Many employers improperly classify workers as exempt under the assumption that a salary automatically disqualifies them from overtime pay. However, to be exempt under California law, employees must:

• Earn at least two times the state minimum wage for full-time employment
• Perform primarily executive, administrative, or professional duties
  If your job duties do not meet these criteria, you may be misclassified and owed overtime.

3. Requiring Employees to Work Off the Clock

Some employers pressure workers into working before or after their scheduled shifts without clocking in. Common examples include:

• Completing tasks before officially starting work
• Finishing work after clocking out
• Attending mandatory meetings off the clock
  All of these are illegal, and employees can seek back pay for unpaid hours.

4. Averaging Work Hours to Avoid Overtime

Employers may attempt to average your weekly hours to avoid paying overtime. For example, if you work 10 hours on Monday but only 6 on Tuesday, your employer may claim you worked an average of 8 hours per day. However, California does not allow this—you are still entitled to overtime for any day you exceed 8 hours.

5. Not Counting Bonuses or Commissions in Overtime Pay

Overtime should be calculated based on your regular rate of pay, which includes commissions and bonuses. If your employer is calculating your overtime based only on your base salary or hourly rate, they may be underpaying you.

6. Retaliation for Claiming Overtime Pay

Some employees are afraid to demand their rightful overtime pay because they fear retaliation. California law strictly prohibits any form of retaliation, including demotions, pay cuts, or wrongful termination. If you experience retaliation, you may be entitled to additional damages.

What to Do If You’re Owed Overtime Pay

If you suspect your employer is violating overtime laws, take the following steps:

1. Document Everything
   • Keep track of your hours worked, pay stubs, and any communications related to your schedule.
2. Talk to Your Employer (If Safe to Do So)
   • In some cases, an employer may simply be unaware of the law and correct the mistake when confronted.
3. File a Wage Claim with the California Labor Commissioner
   • You can file a wage claim through the California Department of Industrial Relations (www.dir.ca.gov) to recover unpaid wages.
4. Hire an Employment Lawyer
   • If your employer refuses to pay or retaliates against you, a lawyer can file a lawsuit to recover your wages, penalties, and even attorney fees.

FAQs: Understanding Overtime Violations

1. What if my employer asks me to waive my right to overtime?
California law does not allow employees to waive their right to overtime pay. Any agreement stating otherwise is illegal and unenforceable.

2. Can I still claim unpaid overtime if I’m no longer employed?
Yes! You can file a wage claim for unpaid overtime up to three years after the violation occurred.

3. How much can I recover in an unpaid overtime lawsuit?
In addition to unpaid wages, you may be entitled to interest, penalties, and attorney fees. In some cases, employers may owe double damages for willful violations.

Fight for the Pay You’ve Earned

If you believe your employer has wrongfully denied you overtime pay, you don’t have to fight alone. The experienced employment law attorneys at Shaumyan & Derbarseghian, LLP are here to help you recover what you’re owed.

Don’t let your employer take advantage of you—get the compensation you deserve today.