Asian Journal- The Filipino-American Community Newspaper

THE failure or refusal to pay proper overtime compensation is not simply a single violation of California’s labor laws. An overtime violation is generally accompanied by other labor violations. These other violations give rise to other damages that an employee may recover from the employer.

The first item of damage is, of course, the actual overtime compensation owed to the employee. This actual overtime compensation is computed at 1.5 times the employee’s regular rate (often called "time and a half") and is multiplied by the number of hours in excess of 8 hours per day. If the overtime hours exceeds 12 hours per day or exceeds 8 hours on the seventh day, overtime compensation is computed 2 times the regular rate (often called "double time"). For example, if an employee’s regular rate is $10 per hour, time and half would be $15 per hour and double time would be $20 per hour. These premium overtime hourly rates will then be multiplied by the number of overtime hours during the pay period.

Aside from the actual overtime compensation owed, the employee may also recover from the employer the following items of damages:

1) Legal Interest – In any action brought for the nonpayment of wages (overtime compensation is such a wage), the court shall award interest on all due and unpaid wages at the rate of interest specified by law. This interest shall accrue from the date the overtime payment is due and payable.

2) Statutory Penalties – A statutory penalty is a penalty imposed for the violation of a statute (the payment of overtime is covered by such a statute). In the case of labor laws, a statutory penalty is usually a fine imposed against the employer for violating statutory labor provisions. A statutory penalty imposes an automatic liability on the employer for violating the law. Generally, statutory penalties for overtime violations include waiting time penalties and record-keeping penalties.

Waiting time penalties are assessed against the employer when there is a ‘willful failure to pay wages’ due to the employee at the conclusion of the employment relationship. The penalty is measured at the employee’s daily rate of pay and is calculated by multiplying the daily wage by the number of days that the employee was not paid, up to a maximum of 30 days.

Record-keeping penalties are assessed against the employer when there is a ‘knowing and intentional failure’ by the employer to keep and furnish accurate itemized wage statements to the employee. The employee is, therefore, entitled to recover the greater of all damages or $50 for the initial pay period of the violation and $100 per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of $4,000.

3) Civil Penalties – A civil penalty for a labor violation is a monetary assessment against an employer to compensate the employee’s harm. A civil penalty is not meant to be punishment for a violation but rather a means of restitution for wrongdoing. On top of the statutory penalties, the following civil penalties may be additionally assessed against in employer for an overtime violation: