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Worked through your breaks? You may be entitled to back overtime

On Behalf of | Sep 14, 2021 | Employment Law

If your boss has expected you to work without breaks or through your allotted lunch period, you could be entitled to back pay at the overtime premium rate.

Recently, the California Supreme Court ruled unanimously that workers who miss meal or rest breaks are due “one additional hour of pay at the employee’s regular rate of compensation.’ And, a separate law requires this to be counted as overtime if it resulted in your working more than eight hours in a day.

In other words, your missed breaks count as overtime in most situations. That means you should receive one and one-half times your regular rate of pay, which should be calculated to include any non-discretionary compensation like shift premiums or bonuses.

Here’s an example. Suppose you’re a non-exempt nursing assistant who regularly works 8-hour night shifts at a hospital. Those shifts are paid at a premium rate under hospital policy. If you work through your meal and rest breaks, which add up to an hour per shift, the hospital owes you one and one-half times the premium shift rate for that hour.

You don’t qualify for overtime if you’re an exempt employee

There are situations when this might not be true. For example, you might be an exempt employee. This is unusual, as most employees in California are non-exempt. “Exempt” means you are exempt from receiving overtime by a provision in the California Labor Code or an Industrial Welfare Commission wage order.

Some examples of employees who might be exempt from overtime include:

  • Executive, administrative or professional employees who meet certain criteria
  • Certain employees who work in the computer software field
  • State and municipal employees
  • Outside salespeople
  • Close family members of the employer
  • Participants in a national service program like AmeriCorps
  • Commercial drivers
  • Crew on a commercial fishing boat
  • Professional actors
  • Employees covered by a valid collective bargaining agreement, in some circumstances
  • Adult employees who earn more than half their pay in commissions

If you are not specifically exempt, you are non-exempt. Non-exempt means you are entitled to one and one-half times your full regular rate of whenever you work more than eight hours a day. You are entitled to twice your full regular rate if you work more than 12 hours in any workday or in excess of eight hours on the seventh consecutive day of the workweek.

It doesn’t matter if you are salaried. Many people who are paid a salary are still non-exempt, meaning they are entitled to overtime. The same goes for people paid by the piece or by commission.

Suit originally brought by a bartender who didn’t receive incentive pay

The worker who brought this lawsuit was a bartender at a Loews property. When she worked through her meal and rest breaks, she claimed in the lawsuit, Loews did pay her overtime. However, when calculating her overtime rate, it omitted certain non-discretionary incentive payments that she was receiving as a regular part of her pay.

Lower courts in this and some similar cases had ruled that the language of the law only required the employer to pay the employee for an hour at their regular rate of pay, not the overtime rate. Others found that the employee must be paid at the overtime rate, but not calculated including non-discretionary incentive payments.

The high court was clear. Missed meal and rest breaks are to be compensated at the employee’s full overtime rate, including non-discretionary payments such as shift incentives and bonuses. Discretionary bonuses, gifts, sick pay, vacation pay, weekend premium or holiday premium work are not included in the calculation.

If you miss breaks, keep good records

If you are interested in contesting how your overtime was calculated, it’s useful to have a clear idea of how many times you missed meal or rest breaks. However, some records can be reconstructed during any lawsuit you might bring. Talk to an employment law attorney who handles wage and hour issues. Your attorney can help you determine if you have a worthwhile case and instruct you on how best to proceed.

Leigh Law Group handles wage and hour claims for California workers.