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My employer is asking me to waive my overtime, is this legal?

by | Oct 5, 2023 | Employment Law

Under both California state law and federal law, it is illegal for your employer to ask you to waive your overtime pay. In California, non-exempt employees at least 18 years or older must be paid overtime at a rate of one and one-half times their regular rate if they work more than eight hours in any workday or more than 40 hours in any workweek. Double pay, meaning twice the rate of pay, is awarded when employees work 12 or more hours in a workday or more than 8 hours on the 7th consecutive workday in a workweek. However, there is a list of exemptions for those in fields that are not required to receive overtime pay including taxicab drivers, professional actors, student nurses, and more. Though the majority of those protected by overtime laws are hourly-wage earners, you may check the list of exemptions to see if you qualify. 

In the case that an employer forces an employee to agree to a lesser wage for overtime hours, California law still ensures that the employee receives adequate pay, and the employee is entitled to collect the difference between the wage they were paid and the one they should have received. 

It is likewise illegal for an employee to waive their own overtime. Despite any verbal or written agreement made with an employer, it is unlawful for an employee to waive their overtime, regardless of whether the decision is voluntary or not. While there are certain instances where it is legal for an employee to waive certain worker protections, in most cases, an employee may not waive their overtime, and they must collect the proper and adequate compensation for their labor. An employee must even be compensated for overtime work that they were not required or asked to do, per California state law. 

Said overtime wages must be paid by the next pay period after the overtime work occurred. If an employer withholds these wages you can either file a claim with the Division of Labor Standards Enforcement, or you can file a lawsuit to recover lost pay. If you work in an industry that does not fall under the exemptions or exceptions for California state laws on overtime pay, your employer cannot ask you to waive your overtime. If they do ask or force you to do so, consider taking legal action with the support of an experienced lawyer to protect your employment rights. 

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