California construction overtime rules

What are the overtime rules for California construction workers?

California counts overtime by the day as well as the week. Section 3(A) of IWC Wage Order 16, which covers on-site construction, drilling, logging and mining, sets the same rules as Labor Code section 510. Federal law only requires overtime past 40 hours in a workweek (29 U.S.C. 207(a)(1)), so California's daily rules are where most construction payroll errors come from.

The California Labor Commissioner's overtime FAQ states the same rules and adds that overtime is calculated on hours actually worked. Paid holidays and other paid time not worked do not count toward it.

Who does Wage Order 16 cover?

Everyone employed in on-site construction occupations, unless an exemption applies. Wage Order 16 section 2(C) defines construction occupations as all job classifications associated with construction, including alteration, demolition, building, excavation, renovation, remodeling, maintenance, improvement and repair work, and work that requires a contractor's license under Business and Professions Code section 7025 and following.

• Administrative, executive and professional employees are outside sections 3 to 11 if they meet the duties test and earn a monthly salary of at least twice the state minimum wage for full-time work (section 1(A)).
• Public employees of the state, a city, county or special district are outside most of the order (section 1(B)).
• Office staff. Wage Order 16 covers on-site occupations, so office employees who never work on site may fall under a different wage order. Check which order fits each job before you set up payroll.
• Union members may be exempt from the overtime sections under a qualifying agreement. See the union section below.

How do the workweek and the seventh-day rule work?

The seventh-day premium applies only when an employee works all seven days of one fixed workweek. Wage Order 16 section 2(T) defines the workweek as any seven consecutive days starting on the same calendar day each week, a fixed and regularly recurring period of 168 hours. Section 2(S) defines a workday as any consecutive 24-hour period starting at the same time each calendar day.

• Your workweek start matters. Read literally, seven straight days that straddle two of your workweeks do not include a seventh consecutive day of work in either week, so the day-seven premium does not apply, though daily and weekly overtime still do. Set the workweek in writing and keep it.
• Shutdowns and long pours. Section 3(G) lets days of rest accumulate when the work reasonably requires seven or more consecutive days, as long as the employee gets the equivalent of one day's rest in seven each calendar month.
• The 72-hour line. Section 3(E) bars firing or disciplining an employee for refusing to work more than 72 hours in a workweek, except in an emergency as defined in section 2(F).

How do daily and weekly overtime combine?

They do not stack. An hour already paid as daily overtime does not count again toward the 40 hours for weekly overtime. The Labor Commissioner's office explained this in its 1999 AB 60 memo: there is no pyramiding of separate forms of overtime for the same hours. Section 3(D) of the order and Labor Code 510 likewise say nothing requires combining more than one overtime rate for an hour.

So the order of work matters. Count regular hours day by day; once regular hours for the week reach 40, any later hour that would have been regular becomes overtime.

How does an alternative workweek change overtime?

A ratified alternative workweek lets a crew work up to 10 hours a day within a 40-hour week without daily overtime (Wage Order 16, section 3(B)(1)(a)). Hours beyond the regularly scheduled hours, and over 40 in the week, are paid at 1.5 times. Double time applies past 12 hours in a day and past 8 hours on a day that is not one of the scheduled workdays.

1. 1

   Write the proposal

   The employer proposes a written schedule with a fixed, regularly recurring number of workdays and hours, or a menu of options (section 3(C)(1)).

2. 2

   Disclose and meet

   Give affected employees a written disclosure of the effects on wages, hours and benefits, and hold a noticed meeting at least 14 days before the vote, in another language too if at least 5 percent primarily speak it (section 3(C)(3)).

3. 3

   Hold a secret ballot

   At least two-thirds of the affected employees in the work unit must approve, in a vote during working hours at the work site, with ballots mailed to absent employees employed in the last 30 days (sections 3(C)(1) and (2)).

4. 4

   Report and wait

   Report the results to the DIR Office of the Director, Research, within 30 days and post them at the job site. Employees need not work the new hours for at least 30 days after the results are announced (sections 3(C)(7) and 3(B)(1)(e)).

A work unit is all nonexempt employees of one employer within a given craft who share a common work site (section 2(U)). Employees can petition to repeal the schedule: one-third can force a new vote after six months, and two-thirds must vote to reverse it (section 3(C)(5)). The employer may not cut the regular hourly rate because of the schedule (section 3(B)(1)(d)).

Are union crews exempt from California overtime rules?

They can be. Wage Order 16 section 3(H) says the overtime and alternative workweek subsections, 3(A) to 3(E), do not apply to employees covered by a valid collective bargaining agreement that meets all of these conditions (see also Labor Code 514):

• The agreement expressly provides for the wages, hours of work and working conditions of the employees.
• It provides premium wage rates for all overtime hours worked.
• It sets a regular hourly rate of at least 30 percent more than the state minimum wage.

The DLSE memo adds that "premium wage rates" means any rate above the straight-time regular rate, and that the agreement's own overtime definitions control which hours count as overtime. The makeup time rule in section 3(F) still applies to union employees unless the agreement says otherwise (section 3(H)(2)). Whether a particular agreement qualifies is a contract question for counsel.

How do makeup time and mid-day travel affect overtime?

Makeup time can keep extra hours at straight time; required travel adds to them. Under section 3(F), when an employer approves an employee's written request to make up time lost to a personal obligation in the same workweek, those hours do not count toward daily overtime unless they push the day past 11 hours or the week past 40. The employer may tell employees the option exists but may not encourage or solicit the requests.

Section 5(A) requires all employer-mandated travel after the first location where the employee must report to be paid at the regular rate, or at the overtime rate when the day or week has crossed a threshold. A 9-hour day that includes a 40-minute drive between two jobsites carries an hour of daily overtime. See travel time between job sites.

What should you check before payroll each week?

• Each employee's daily hours, not just the weekly total, including drive time between sites.
• Any day over 8 (or over the scheduled hours on an alternative workweek) and any day over 12.
• Whether anyone worked all seven days of your workweek.
• Regular hours capped at 40, counted day by day in order.
• Whether an alternative workweek was properly adopted for that work unit and is still in force.
• For union employees, whether the agreement meets section 3(H) and what its own overtime rules say.
• For public works, the prevailing wage determination and certified payroll obligations.
• Approved makeup time requests, in writing, for the same workweek.

How ZeroBadge handles this

Daily overtime needs daily hours you can trust. ZeroBadge records each worker's shift from power on to power off on a company badge and classifies every minute as on site, in transit or other, allocated to a jobsite, so a drive between sites is part of the day instead of a gap. Weekly timesheets run Saturday to Friday by default, and the exceptions list shows missing clock-outs, late starts and early finishes before anyone approves the week.

Approved hours are sent to your payroll provider, or exported as CSV, Excel or PDF, where California's overtime rules are applied. ZeroBadge does not decide which rule or exemption applies to your crews. See overtime tracking.