Thank you for your reply.
In the state of California, W2 employees are entitled to overtime for all hours worked in excess of 8 per day, regardless of the total number of hours worked in the week, unless the employee is specifically exempt from overtime. It doesn't matter where the employer
is based--if the employee is working within the state, California law applies.
California overtime law represents a departure from the overtime laws in many other states, which require overtime to be paid only when the weekly total of hours worked exceeds 40. This may explain the confusion of your husband's New York employer.
An individual in your husband's circumstance is entitled to overtime unless an overtime "exemption" applies. Overtime exemptions are narrow, and the only one likely to apply is the one concerning management employees.
California law provides that in order to be exempt pursuant to the managerial exemption from overtime, an employee must spend more than 50 percent of his or her time performing the following duties.
- Customarily and regularly directing the work of at least 2 or more employees
- Customarily and regularly exercising discretionary power
- The authority to hire and fire employee
- The ability to make comments and suggestions about personnel matters that are given weight by the employer.
The employee must make a salary of at least $640 per week to be eligible for the exemption.
If your husband is being paid on a straight hourly basis or does not satisfy the above-stated criteria, the managerial exemption would not apply. Here is a list of the other overtime exemptions, though it would not seem that any would be relevant: http://www.dir.ca.gov/dlse/faq_overtimeexemptions.htm
Since your husband worked more than 8 hours in a day and is likely not exempt from overtime, he would have a claim for unpaid overtime which he could bring through the Department of Labor Standards Enforcement. To file a wage claim with the DLSE, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm
His employer will be legally prohibited from retaliating against him for making a claim to the Labor Board.
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