November 13, 2025 Table of Contents
Hourly vs salary sounds like a simple payroll choice, but in California it can decide whether you get overtime and breaks. Many workers are told that a salary means no overtime. That is often wrong. Below, we explain how California treats hourly and salaried workers and who counts as exempt in 2026. We also cover what to do if your employer got it wrong.
Do salaried employees get overtime in California?
Often, yes. According to the California Labor Commissioner, a salaried employee must be paid overtime unless they meet the test for exempt status. Under Labor Code section 515, the test requires exempt duties for more than half of the workday. It also requires a salary of at least twice the state minimum wage, or $70,304 a year in 2026.
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Zev Abramson is the founding partner of Abramson Labor Group and a passionate advocate for employees whose voices too often go unheard. He earned his J.D. from Loyola Law School, but his commitment to protecting workers began long before he…
California law does not really sort workers into “hourly” and “salaried.” It sorts them into non-exempt and exempt. A salaried worker can land in either group, so there are three types to compare.
| Right | Hourly (non-exempt) | Salaried, non-exempt | Salaried, exempt |
|---|---|---|---|
| Overtime after 8 hours a day or 40 a week | Yes | Yes | No, if truly exempt |
| Double time after 12 hours a day | Yes | Yes | No, if truly exempt |
| Paid 10-minute rest breaks | Yes | Yes | Generally no, if truly exempt |
| Pay for every hour worked | Yes | Salary covers only the first 40 hours | Salary covers the job |
The key point sits in the middle column. For a non-exempt salaried worker, the fixed salary pays only for regular, non-overtime hours, even if a private agreement says otherwise (Labor Code section 515(d)(2)). Every overtime hour still costs the employer extra.
Most hourly workers in California are non-exempt. Under Labor Code section 510, your employer must pay 1.5 times your regular rate for hours over 8 in a workday or 40 in a workweek. The same rate applies to the first 8 hours on a seventh straight workday. Double time applies after 12 hours in a day and after 8 hours on that seventh day.
Overtime you were not told to work still counts. The Labor Commissioner says employers must pay overtime whether or not they authorized it, for work they knew or should have known about. Your employer may discipline you for breaking an overtime policy, but it still has to pay for the time. Unpaid prep time, closing duties, and “quick” work after you clock out are common sources of claims for our Los Angeles wage theft attorneys.
Non-exempt workers also get breaks. For every 4 hours of work, or major fraction of 4 hours, you get a net 10-minute paid rest period (Labor Commissioner rest period FAQ). For shifts over 5 hours, Labor Code section 512 requires a meal period of at least 30 minutes, with a second one after 10 hours. Our article on California meal and rest break rules covers timing and waivers in detail.
A salary is only a way of paying you. The Labor Commissioner’s overtime FAQ states that a salaried employee must receive overtime unless they meet the test for exempt status or a specific legal exemption applies. In the hourly vs salary debate, this is the rule employers most often skip.
For executive, administrative, and professional employees, Labor Code section 515(a) sets three requirements. Your employer must meet all three, not just one.
| Requirement | What it means for you |
|---|---|
| Salary test | A monthly salary of at least twice the state minimum wage for full-time (40-hour) work. In 2026 that is $70,304 a year, or $1,352 a week. |
| Duties test | You are “primarily engaged” in exempt executive, administrative, or professional duties, meaning more than half of your work time. |
| Judgment test | You customarily and regularly use discretion and independent judgment in those duties. |
California’s duties rule is stricter than federal law. The Labor Commissioner’s glossary notes that “primarily engaged” requires more than half of your time on exempt work, which differs from the federal “primary duty” test. So a store manager who spends 70 percent of the day stocking shelves and ringing up customers may fail the test even with a high salary.
Each exemption has its own duties rules. Here is what each one requires, based on the Labor Commissioner’s guidance, and the signs that it may not fit your job.
| Exemption | What the job must involve | Signs it may not apply |
|---|---|---|
| Executive | Managing the business or a recognized department, regularly directing two or more other employees, and authority to hire or fire, or recommendations on those decisions that carry real weight | You supervise one person, or you have no say in hiring, firing, or promotions |
| Administrative | Office or non-manual work tied to management policies or general business operations, or directly assisting an owner or exempt executive with delegated discretion | Your job is producing what the company sells rather than helping run the business |
| Professional | A state license and practice in law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting, or a recognized learned or artistic profession | Your work is routine mental, manual, or physical tasks that anyone with general training could do |
The Labor Commissioner notes that employers most often misapply the administrative exemption to workers in the production side of the business rather than true administrative roles (glossary). Every exemption also requires real discretion. The Labor Commissioner defines it as comparing possible courses of action and choosing one, free from immediate direction, on matters of significance. Following a manual or a supervisor’s decisions may not be enough.
A “no” to any one of these means you may be non-exempt and owed overtime. A “yes” to all three does not settle it, because the exemption’s own duties rules still apply.
The reverse also happens. Hourly pay does not always mean non-exempt. For example, the Labor Commissioner lists certain employees in the computer software field who are paid hourly and still qualify as exempt professionals (overtime exemptions table).
This article covers workers wrongly labeled exempt. That is different from independent contractor misclassification, where an employer treats an employee as if they run their own business. Both can cost you overtime, but the legal tests differ.
Take a worker who earns $22 an hour. Here is what Labor Code section 510 requires for two long shifts.
| Shift | Regular pay | Overtime (1.5x, $33) | Double time (2x, $44) | Total for the day |
|---|---|---|---|---|
| 10 hours | 8 x $22 = $176 | 2 x $33 = $66 | None | $242 |
| 13 hours | 8 x $22 = $176 | 4 x $33 = $132 | 1 x $44 = $44 | $352 |
Now take an “assistant manager” paid $60,000 a year who works five 10-hour days each week. She spends most of her time on the register and stocking shelves. She fails the 2026 salary test on its own, because $60,000 is below $70,304.
The Labor Commissioner converts a salary to a regular rate by dividing the annual salary by 52 weeks, then by 40 hours. Her math works like this:
Each workday she missed a required break could add one more hour of pay, about $28.85, under Labor Code section 226.7. These figures are an illustration, not a prediction for any real case.
It depends on your hours and your classification, not the pay label. A non-exempt worker, hourly or salaried, earns overtime for long days. A truly exempt salaried worker gets steady pay but no overtime, no matter how late the nights run. If you often work past 8 hours a day, non-exempt status usually protects more of your time.
That is why a salary offer deserves a second look. Compare it with what the same hours would pay at your regular rate plus overtime, using the math in the example above.
In an hourly vs salary switch, your overtime rights do not disappear on their own. What matters is whether you now pass all three parts of the exempt test. If your duties stayed the same and you still spend most of your day on non-exempt work, you likely remain non-exempt. In that case, the salary pays only your first 40 hours under Labor Code section 515(d)(2).
Watch for a salary that looks generous but falls under $70,304, or a new title with no real change in authority. Both are common signs of a pay change made to avoid overtime.
Most unpaid overtime claims fall under Code of Civil Procedure section 338(a), which gives three years for an action on a liability created by statute. The California Supreme Court held in Murphy v. Kenneth Cole Productions that the extra hour of pay for missed breaks is a wage with the same three-year limit. Each missed paycheck can start its own clock, so older weeks drop off as time passes.
If you leave your job, your employer must also meet final pay deadlines, and late final pay can trigger waiting-time penalties under Labor Code section 203. See our article on final paycheck penalties for the timing rules. Treat this section as general guidance, not your exact deadline.
Consider a case review if your salary is under $70,304 or most of your day goes to routine work. The same applies if an hourly vs salary change cut your overtime but not your duties. Misclassification is one of the most common California wage and hour claims we handle. Unpaid amounts often grow for years before anyone checks the math.
At Abramson Labor Group, we represent California employees, never employers. We serve clients across California from our Burbank office, in English and Spanish. The firm holds a 4.5-star rating across more than 1,900 Google reviews (as of September 2026). Our case reviews are free and confidential, and we work on contingency.
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The minimum is $70,304 a year, or $1,352 a week. That equals twice the 2026 state minimum wage of $16.90 for 40 hours a week (DIR). Meeting the salary floor is not enough on its own, because the duties and judgment tests also apply.
Salaried non-exempt employees get the same rest and meal breaks as hourly workers. Properly exempt executive, administrative, and professional employees are excluded from the wage order sections that contain the rest period rules, according to the Labor Commissioner’s exemptions table. If you are misclassified, you may be owed break pay too.
No. A title does not decide exempt status. Under Labor Code section 515, you must spend more than half of your time on exempt duties and meet the salary floor. A “manager” who mostly works the register or the floor may still be owed overtime.
Yes. The Labor Commissioner says California employers must pay overtime whether or not they authorized it, as long as they knew or should have known about the work. Your employer can discipline you for breaking its policy, but it cannot skip the pay.
In general, yes. The Labor Commissioner says an employer can set your schedule and may discipline you for refusing scheduled overtime. It cannot discipline you for refusing to work a seventh day in a workweek. Our article on whether your employer can require overtime covers the exceptions.
Your employer must pay overtime no later than the payday for the next regular pay period after you earned it, under Labor Code section 204. Regular wages still follow the normal payday schedule.
This article is general information about California law, not legal advice. Every situation is different. For advice about your specific case, talk to a licensed California employment attorney.
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