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Should I get over time pay since I work more than 8 hours

San Francisco, CA |

I just got a job working 2 days a week at a restaurant. I get paid hourly and I also get tips. On some days I work more than 8 hours a day - sometime 9 or 10 hours a day. But the owner of the restaurant only pays me my regular hourly rate instead of 1.5 rate. Isn't this illegal ? Am I not entitled to over-time pay since I worked more than 8 hours? He said that since I work less than 40 hours a week (max of 20), that I am not entitled to over-time pay. I think he now wants to fire me since I asked about over-time pay.

Attorney Answers 6

  1. Yes you should get paid overtime (time-and-a-half) if you work more than 8 hours in a workday. There are some exceptions to this rule, for example, if there is an established "alternative workweek schedule" in place at the restaurant, although those are relatively rare. In addition, it would be illegal for your boss to fire you in retaliation for your request to paid properly (but that doesn't mean he won't). You should definitely speak to an employment lawyer about your situation.

  2. The owner is wrong about you not being entitled to overtime for hours worked more than 8 in a work day. He would also be acting unlawfully to terminate you because you are asking for your rightful pay.

    It would be prudent for you to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

    Most employment attorneys who practice this area of law work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

  3. Like the other attorneys, you should receive overtime when working over eight hours per day. If you do get terminated, I would contact an employment law attorney that handles wrongful termination.

  4. Yes, and here is a link . Yes, as the other attorney cuts and pastes his advertisement of CELA & NELA on most of his answers, that's ok, but Avvo's lawyer finder tool the best bet for an employment lawyer.

  5. Generally an employee who worked over 40 hours in the workweek must receive one and one-half times his or her regular rate of pay for all hours worked over 40 in the workweek. Further, all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek shall be paid at one and one-half times the employee's regular rate of pay for; and double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.

    You might benefit from consulting with an experienced employment law attorney and having them evaluate your case. The California Employment Lawyers Association maintains a list of employment law attorneys who represent employees against employers. Follow the link to:

  6. Your boss is probably confused. Federal law provides that employees must be paid overtime if they work over 40 hours in a workweek. However, California law (which governs in California) provides that nonexempt (most restaurant employees are nonexempt) employees must be paid overtime if they work over 8 hours in a workday (don't count meal periods, but count break times) OR over 40 hours in a workweek. If you work over 8 hours in any workday, you must be paid overtime. In addition, if you are retaliated against (fired, demoted, cut hours, etc.) BECAUSE you asserted your right to overtime pay, you would have a case for wrongful termination. If your boss won't pay the OT owed to you and/or retaliates against you for asserting your right to OT pay, call an employment law attorney to discuss. Many of us offer a free phone consultation.

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