Overtime Pay in California & Night Harvest
It is that time of year when many farming companies and agribusinesses start to embark on the annual night harvest. As an employer, you may have workers busy from one evening to the next morning picking produce during the cooler temperatures of the night, to preserve the fruit's quality and to maintain the fruit's fresh flavors, acidity, and aromas, resulting in a higher quality final product.
How does this common harvesting practice affect the pay of your employees, if at all? We thought this might be a good time to provide a brief refresher course on California’s overtime provisions.
In California, the general overtime provisions are that a nonexempt employee shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless he or she receives one and one-half times his or her regular rate of pay for all hours worked over eight hours in any workday and over 40 hours in the workweek (or double time as specified below). Eight hours of labor constitutes a day's work, and employment beyond eight hours in any workday or more than six days in any workweek requires the employee to be compensated for the overtime at not less than:
- One and one-half times the employee's regular rate of pay for 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; 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.
For agricultural workers, as of January 1, 2022, for employers with 26 or more employees and as of January 1, 2025, for employers with 25 or fewer employees, overtime is required for work exceeding 8 hours per day or 40 hours per week at 1.5 times the regular rate of pay. Double the regular rate of pay is required after 12 hours in a workday.
Overtime is based on the “regular rate of pay”, which is the compensation normally earned for work performed.
Ordinarily, the hours to be used in computing the regular rate of pay may not exceed the legal maximum regular hours which, in most cases, is 8 hours per workday, 40 hours per workweek. This maximum may also be affected by the number of days an employee works in a workweek. It is important to determine what maximum is legal in each case.
"Workday" is defined in the Industrial Welfare Commission Orders and Labor Code §500 for the purpose of determining when daily overtime is due. A workday is a consecutive 24-hour period beginning at the same time each calendar day, but it may begin at any time of day. The beginning of an employee’s workday need not coincide with the beginning of that employee’s shift, and employers may establish different workdays for different shifts. However, once a workday is established it may be changed only if the change is intended to be permanent and the change is not designed to evade overtime obligations. Daily overtime is due based on the hours worked in any given workday; and the averaging of hours over two or more workdays is not allowed.
“Workweek”: Any seven consecutive days, starting with the same calendar day each week beginning at any hour on any day, so long as it is fixed and regularly occurring. "Workweek" is a fixed and regularly recurring period of 168 hours, seven consecutive 24-hour periods. An employer may establish different workweeks for different employees, but once an employee's workweek is established, it remains fixed regardless of his or her working schedule. An employee's workweek may be changed only if the change is intended to be permanent and is not designed to evade the employer's overtime obligation.
Now let’s turn to the fact pattern of a night shift, where a worker performs the night harvest from the evening of one day to the morning of the next day. Is overtime pay triggered? A worker is entitled to overtime if working from the evening of one day to the morning of the next day results in more than eight hours of work within a single workday or more than 40 hours in the workweek. Thus, a shift starting at 4 pm on Thursday and ending at 8 am on Friday does not trigger overtime (8 hours worked on Thursday and 8 hours worked on Friday), while a shift starting at 4 pm on Thursday and ending at 9 am on Friday does trigger overtime for the Friday portion (8 hours worked on Thursday and 9 hours worked on Friday).
This fact pattern assumes you have a midnight-to-midnight workday. You can change the defined hours of your workday to avoid the issue of working over midnight, but this should be done in consultation with your labor attorney. For example, you could define your workday as running from 8 p.m. to 7:59 p.m.
Employers should keep a couple of things in mind regarding night harvest shifts. First, even if one night shift does not necessarily trigger overtime, the workweek hours must be carefully monitored since anything over 40 hours would activate the overtime provisions. Additionally, employers should bear in mind that worker health and well-being should be carefully considered when scheduling these challenging work schedules even if they don’t rise to the level of overtime.
If you need assistance with your overtime policies and calculations, contact the Rosasco Law Group APC.
