Yes, under California employers must pay employees who work unauthorized overtime — if the employer knows about it. If the employer knows that the employee worked overtime, whether it was authorized overtime or unauthorized overtime, the employer has to pay for it. If, however, the employer truly has no knowledge of the overtime work, the employer will not have to pay for the unauthorized overtime. The California Labor Commissioner puts it like this, “[A]n employee cannot deliberately prevent the employer from obtaining knowledge of the unauthorized overtime worked, and come back later to claim recovery. The employer must have the opportunity to obey the law.”
This rule makes sense. Take, for example, a California employee who goes home after her shift and does some additional work for her employer, such as filling out some paperwork. If the employer has no idea that the employee ever did work at home, the employer should not have to pay for it. However, if the employer ever learns (or should have known) that the employee was working at home, the employer will have to pay for the overtime work performed at home.
Here’s what an employer in California should do in this situation. An employer can establish a policy that states that overtime must be authorized, and that the violation of that policy will lead to discipline. There is nothing wrong with an employer disciplining an employee for working unauthorized overtime. So the employer with this type of unauthorized overtime policy can and should discipline its employees. Thus, if the employer learns that an employee worked overtime without authorization, the employer can and should discipline the employee, but the employer still must pay for the unauthorized overtime that the employee worked.
An employer in California who does not pay for unauthorized overtime and knows that its employees are working overtime could be subject to a class action for unpaid overtime or an individual action for unpaid overtime.
If you have worked unauthorized overtime and were not paid for it, contact Strauss & Strauss for a free case evaluation.
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