Overtime Laws

More changes to overtime laws. In case you haven't noticed, the laws relating to overtime pay are complicated and confusing. The Industrial Welfare Commission has now issued an Interim Wage Order which makes the following clarifications:

It makes it clear there is no double-dipping on overtime pay. Some employees had argued that an employee who worked, for example, three 12-hour shifts on the first three days of the workweek (36 hours), and who was paid four hours of overtime on each of those days, would nevertheless be entitled to receive overtime beginning after the fourth hour on the fourth day (the 40th hour in the week). The Interim Wage Order makes it clear the same hours cannot be counted twice for purposes of calculating eligibility for overtime pay.

It clarifies that overtime laws now apply to employees in several industries previously viewed as exempt from overtime laws: on-site construction, drilling, logging and mining of nonmetallic minerals.

It clarifies the alternate workweek provisions, explaining that what the law really means is that:

  1. An employer and employee may agree to an alternate work schedule of no longer than 10 hours per day within a 40-hour workweek without the payment of overtime, PROVIDED the alternate work schedule is regularly scheduled.

  2. Under a regularly scheduled alternative workweek, employers may run 12-hour shifts, but must pay overtime (time and one-half) for any time beyond 10 hours per day (or beyond 40 hours per week). NOTE: Absent a regularly scheduled alternative workweek, hours worked beyond 12 hours per day must be paid at double pay rather than time and one-half.

Independent Contractors. Overtime laws apply only to employees, not to independent contractors. As with any other workers, per diem workers may be independent contractors or employees, depending on various factors including:

The amount of control and supervision the employer exercises over the person doing the work;

The working person's investment in facilities and equipment and opportunity for profit and loss;

The degree of independent initiative, judgment or foresight he or she exercises;

The extent to which the person maintains an independent business organization;

The permanency of the relationship; and

The extent to which the services rendered are an integral part of the principal's business.

Just calling someone an independent contractor does not make them one.


ESKRIDGE & ASSOCIATES, Attorneys at Law, may be contacted by phone (310/792-7021), by fax (310/792-7022) or by e-mail (geskridge@ealaw.net or cbyrnes@ealaw.net). Please visit our web site at ealaw.net or employmentattorneys.net.

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