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Helping You Navigate Workplace Issues in California

Can a California Employee Waive Their Rights to Overtime Payment?


Unless a specific legal exemption applies, California employees are entitled to overtime pay for each hour worked in excess of 8 (and 12) per workday or 40 per workweek. Federal law mandates an overtime rate of one-and-one-half times the employee’s normal wage. California law goes a step further and requires payment for time and a half for hours worked in excess of 8 and up to 12 hours, double wages for every hour worked in excess of 12 per workday–or time and a half for the first 8 hours worked on the seventh consecutive day of work and for all hours worked in excess of 8 on the 7th day of consecutive work.

Your Legal Protections Against Wage Theft

If for any reason you do not receive any earned overtime, that is considered “wage theft” under California law, and you have the right to file a wage claim with the state Labor Commissioner’s Office. The Commissioner is authorized to investigate all wage theft claims and take legal action if necessary. In many cases, the Commissioner is able to help an employer and employee resolve any overtime dispute via a settlement conference. But be mindful that you file your claim timely, as California law provides deadlines for filing claims. Failure to file timely can result in losing your abilities ot file all together.

In lieu of filing a claim with the Labor Commissioner, you also have the right to sue your employer directly in California Superior Court or federal court, depending on circumstances. If you prevail, a judge can order your employer to pay any back overtime wages owed, penalties, interest on the award, as well as your legal fees and related court costs.

Overtime Waivers Are Invalid Under California Law

While the choice to file a wage claim or lawsuit is yours, one thing you cannot do is sign away your right to receive overtime that has been lawfully earned. In other words, your employer cannot ask you to sign a contract where you agree to “waive” any rights to overtime. Section 1194 of the California Labor Code renders such agreements unenforceable. So even if you have signed such an agreement or waiver in the past, that does not prevent you from taking legal action against your employer–and your employer cannot rely on a waiver to avoid its legal duty to pay overtime.

Note that California’s prohibition on overtime waivers covers both the hours worked and rate of compensation. For example, let’s say your employer agrees to pay you overtime for more than 40 hours worked per workweek, but at a rate of 125 percent of your normal wage. This is less than the 150 percent rate mandated by law. So this agreement, even if you signed it, would not be valid under California law.

Despite the law’s clear prohibition of waivers, many employers may still try and circumvent the law by presenting unsuspecting employees with written agreements that purport to pay lower wages. If you find yourself in this situation and are unsure of what steps to take next or believe you have not been properly paid overtime, you should contact an experienced California employment law attorney right away.




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* Cathleen Scott is licensed to practice in Florida only.

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