Overtime after 12 Hours Spells Double Time

Oakland, CANot long after Vince H. started working for a cement-mixing company, he was "asked" to sign a letter waiving lunch. "We get paid regular time for working through our first lunch and that's fine with me, but they should pay double time for second lunch—after 12 hours," he says. That's a lot of money owed to more than 500 cement truck drivers.

"The California Labor Code (Section 1194) states that an employee cannot waive his or her right to overtime compensation: California law requires that an employee be paid all overtime compensation notwithstanding any agreement to work for a lesser wage. Consequently, such an agreement or "waiver" will not prevent an employee from recovering the difference between the wages paid the employee and the overtime compensation he or she is entitled to receive.

Vince (not his real name pending a lawsuit) has been in contact with The Department of Industrial Relations. It states that, if you work over 12 hours, you are entitled to an extra half-hour lunch, provided you are relieved of your equipment (e.g. cement truck) for that period of time. If you cannot be relieved from the equipment, your employer must pay one hour overtime (the equivalent of double time). But here it gets tricky: according to Vince, this law only applies if you don't waive your first lunch.

Is his employer engaging in unfair labor practice?

Every 4 hours you are entitled to a break and you are entitled to a second lunch after 12 hours of work. "Management has everyone sign a letter waiving our first lunch but they don't tell you that you are also waving your second lunch," says Vince. "They get away with paying double time by having you sign. In my industry—readymix concrete—working through lunch is normal; once the concrete is put into the drum, we can't stop for lunch because it is time sensitive. When I was hired, this was understood. But what I didn't know was that, if the first lunch is waived, the second lunch is also waived: I didn't find out until a few years ago.

"I figure that somebody in management saw this as a chance to save money: double time over 12 hours is $40 per employee and we have over 500 drivers—do the math!

"I contacted the IWC online but they make you jump through so many hoops, it's just a big hassle. That's why I contacted a lawyer. In a recent readymix lawsuit [another company but the same complaint], the company settled and the drivers received a substantial payment for unpaid overtime. Now there is talk in our company that management is offering to pay us for a second lunch after 10 hours. That would mean time and a half—they are still trying to get around the 12-hour, double time rule.

For the last two years I have complained about this issue but it has fallen on deaf ears and I'm now regarded as a trouble maker by some of my co-workers. They would think I was a hero if something came of this like the other readymix settlement."

California law requires that employers pay double the employee's regular rate of pay for all hours worked in excess of 12 in any workday. If your employer doesn't abide by the law, you can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner's Office), or you can file a lawsuit. As well, if you no longer work for this employer, you can make a claim for the waiting time penalty.

Furthermore, if your employer retaliates against you for filing a claim for unpaid overtime, you can file a lawsuit against your employer. Contact a labor lawyer for help.