Unpaid Overtime in California: How to Count It and Ask for It in Writing

When does California require overtime pay?

California requires overtime for a nonexempt employee whenever work goes past 8 hours in a workday, past 40 hours in a workweek, or into a seventh consecutive day of work in the same workweek (Labor Code section 510). The daily rule is what sets California apart from federal law, which looks only at the 40-hour week.

The statute does not require an employer to stack two overtime rates on the same hour, so an hour counted as daily overtime is not paid again as weekly overtime. Alternative workweek schedules adopted under Labor Code section 511, and some union contracts, change these thresholds.

Overtime is owed even when nobody approved it. The Labor Commissioner's overtime guidance says an employer must pay for hours it suffered or permitted you to work, although it may discipline you for breaking an approval policy. You also cannot sign away overtime: an agreement to work for less does not bar recovery (Labor Code section 1194).

Are you really exempt from overtime in California?

You are exempt only if your job meets both a duties test and a salary test. A title such as manager or coordinator, or simply being paid a salary, does not make you exempt.

• Salary test. Executive, administrative and professional employees must earn a monthly salary of at least twice the state minimum wage for full-time work (Labor Code section 515(a)). With the minimum wage at $16.90 an hour, that comes to $70,304 a year as of January 1, 2026, according to the Department of Industrial Relations. Local minimum wages do not change this state figure.
• Duties test. The employee must be primarily engaged in exempt duties, which the statute defines as more than half of worktime (section 515(e)), and must customarily and regularly exercise discretion and independent judgment.
• Salaried but nonexempt. If you are paid a salary but fail either test, you are owed overtime. Your regular hourly rate is 1/40th of your weekly salary (section 515(d)), and the salary is treated as covering only your regular hours.

Exemption disputes are fact-heavy. If you suspect you were misclassified as exempt, a description of what you actually did each day, hour by hour, matters more than your job description. If the issue is being treated as a contractor rather than an employee, see the guide to independent contractor misclassification letters.

What counts in the regular rate of pay?

Overtime is a multiple of your regular rate, which can be higher than your base hourly wage. The Labor Commissioner explains that the regular rate includes several kinds of pay, and leaving any of them out shrinks every overtime hour.

Bonuses follow their own arithmetic. Under the Labor Commissioner's method, a production bonus is divided by all hours worked in the bonus period, and each overtime hour earns an extra half of that figure. A flat-sum bonus is divided by the regular (non-overtime) hours in the period instead, and overtime hours are paid at 1.5 or 2 times that figure. Gather the pay records that show bonuses and differentials before you calculate anything.

Example: calculating overtime back pay

Example (hypothetical): a warehouse lead earns $28 an hour. For 26 weeks she worked four 10-hour days and one 6-hour day each week, 46 hours in all, and was paid straight time for every hour.

Because she was already paid straight time for those hours, only the half-time premium is missing. If she had also earned a weekly production bonus, the regular rate would rise and so would the premium. A court can add interest at 10 percent a year from the date each paycheck was due (Labor Code section 218.6 and Civil Code section 3289(b)). If she has left the job, waiting time penalties under Labor Code section 203 may also apply.

How far back can you claim unpaid overtime in California?

The general deadline is 3 years from each underpaid payday, because overtime is a liability created by statute (Code of Civil Procedure section 338(a)). Each paycheck starts its own clock, so older weeks drop off as time passes.

In a court case, unpaid overtime can also be pursued as restitution under California's Unfair Competition Law, which has a 4-year limit (Business and Professions Code section 17208). That route has its own rules and is a question for a lawyer. The Labor Commissioner's wage claim page lists 3 years for overtime claims filed with that office.

One common misconception: the doubled liquidated damages under Labor Code section 1194.2 apply to minimum wage shortfalls, and the statute expressly says they do not cover overtime. A letter that asks for double overtime damages overstates the claim.

Demand letter, wage claim or lawsuit: how they compare

A demand letter involves no filing and keeps the conversation with your employer open. It does not pause the deadline, though, so it is no substitute for a filing when time is short.

For a broader look at wage disputes, including minimum wage and missing reimbursements, see the guide to unpaid wages demand letters in California.

How to write an unpaid overtime demand letter

1. Collect your pay stubs, schedules, badge or login records, texts asking you to stay late, and your own notes of start and stop times.
2. Build a week-by-week table: hours worked each day, overtime and double-time hours, the regular rate used, and what you were paid.
3. Total the shortfall and note the date range, keeping within the 3-year window.
4. State the rule in one sentence: Labor Code section 510 requires premium pay for hours past 8 in a day and 40 in a week.
5. Ask for the exact total and a firm payment date, such as 14 days out, and name the payment method you prefer.
6. Attach the table, keep a copy, and send the letter so you can show when it arrived, for example by certified mail or by email to human resources.

Leave out adjectives and let the hours, rates and totals speak. If you worry about how your employer will react, California law protects employees who complain about unpaid wages; the guide to workplace retaliation letters explains how.

When an attorney-written overtime letter makes sense

An overtime letter gets harder to write when the employer insists you are exempt, bonuses or commissions change the regular rate, the shortfall reaches back years, or a whole crew was paid the same way. In those cases, legal reasoning has to travel with the arithmetic. A small, clean gap backed by good time records may need nothing more than a letter in your own words.

With Talk to My Lawyer, you share your schedules, pay stubs and overtime figures, and a licensed California attorney writes your letter from those facts and documents and sends it on your behalf. Whether a wage claim or a court case fits better is a question for a lawyer with your time records in hand.