Sous Chefs and Kitchen Managers Labelled Exempt: When You Are Owed Overtime

Short answer: A salary and a manager title do not decide whether you are owed overtime in California. Your employer has to prove you are exempt, meaning not owed overtime. That takes a salary of at least $70,304 a year in 2026 ($83,200 at a covered fast food restaurant) and a job that meets every part of the duties test, including more than half your work time on management duties. If you mostly cook and prep, you may be owed overtime.

At a glance

• Salary under the line: if you earn less than $70,304 a year in 2026, you are not exempt as an executive, whatever your title or duties.
• Salary over the line: that proves nothing about your duties. The duties test is still open.
• The duties test: "primarily" means more than one-half of your work time, measured on the work you actually do.
• Your pay: a misclassified full-time salaried employee is generally owed time and a half, figured on a regular hourly rate of one-fortieth of the weekly salary.

What people assume, and what California law says

Why does a sous chef or kitchen manager with a salary still get overtime?

If you have been told your title means no overtime, that is not the end of the question. Overtime is the default. "Exempt" means the employer says you are not owed it. "Nonexempt" means you are.

Labor Code section 510(a) sets the default. Work over eight hours in a workday or over 40 hours in a workweek must be paid at no less than one and one-half times the regular rate of pay, the hourly rate that overtime is figured on. So must the first eight hours on the seventh day of work in a workweek. Work over 12 hours in a day, and over eight hours on the seventh day, is paid at double time. A valid alternative workweek schedule changes how daily overtime is figured. Our guide to unpaid overtime in California covers the general rule, and the 12-hour shift rules for nurses show daily overtime in another industry.

Your employer has to prove the exemption. In Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, an outside-salesperson case, the California Supreme Court said "exemptions from statutory mandatory overtime provisions are narrowly construed", which means courts read them tightly, and that claiming an exemption is "an affirmative defense", one the employer must prove. The Labor Commissioner's overtime FAQ says a salaried employee "must be paid overtime unless they meet the test for exempt status as defined by federal and state laws". A title alone does not settle it. What you actually do all week does.

Is your salary above the 2026 line? Check this first

If your salary is under $70,304 a year, you are not exempt as an executive, and your duties do not decide it. To be exempt as an executive, you must earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. The Department of Industrial Relations (DIR) publishes the yearly figure:

DIR says that as of January 1, 2026, employees "must earn an annual salary of at least $70,304" to meet the threshold. Above the line, nothing is decided: DIR's 2027 release says employees "must also satisfy the duties and other requirements applicable to the specific exemption".

Covered fast food restaurants have a higher line. DIR's fast food FAQ says: "If your salary is less than $83,200 as a fast food restaurant employee starting on April 1, 2024, you are not an exempt employee." That covers only a limited-service restaurant, meaning customers order and pay before eating, that is part of a chain of at least 60 establishments nationwide. Do not assume your restaurant is covered.

An illustration only, with made-up figures: a sous chef paid $1,200 a week earns $62,400 a year. That is under the 2026 line, so the sous chef is not exempt as an executive, whatever the title says.

Which wage order covers restaurants, and what must a manager do to be exempt?

Restaurants fall under Wage Order 5 (8 California Code of Regulations section 11050), which the Industrial Welfare Commission wrote for the public housekeeping industry. Catering, banquet and box lunch services are inside it too. A kitchen run inside a business that has its own industry order may fall under that order instead. Under section 1(B)(1), the order's executive exemption has five duties elements plus the salary element. The employee must be someone:

1. whose duties and responsibilities involve the management of the enterprise or of a customarily recognized department or subdivision of it, such as a kitchen;
2. who customarily and regularly directs the work of two or more other employees;
3. who has the authority to hire or fire, or whose recommendations on hiring or firing are given particular weight;
4. who customarily and regularly exercises discretion and independent judgment, which means making real decisions rather than following a set routine; and
5. who is primarily engaged in duties that meet the test of the exemption.

The employer must meet every element. A kitchen manager who runs the line but directs fewer than two other people, or who has no say in hiring, fails the test whatever the title is.

"Primarily" is the element that decides most kitchen cases. The wage order defines it as "more than one-half the employee's work time", and Labor Code section 515(e) says the same for the statutory exemptions. More than half of a 50-hour week is more than 25 hours.

The wage order tells a court to measure it this way: "The work actually performed by the employee during the course of the workweek must, first and foremost, be examined." The employer's "realistic expectations and the realistic requirements of the job" count too, and that can cut either way, as the Batze case below shows.

Which kitchen tasks count as management work, and which count as kitchen work?

Here is how line cooking, prep, expo and dish work usually sort against management work. These are examples. Each task is classified separately, by the reason you did it.

The wage order says exempt work includes "all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions". Doing the schedule counts. Handling supplies is a closer call: the federal regulation the order points to treats distributing materials and supplies as management work when it is left in the supervisor's hands, but says a manager who restocks in a large retail establishment, where that is customarily assigned to a nonexempt employee, is doing nonexempt work.

How do you count your own hours? A worked week for a working manager

This is the working-manager problem: you manage, and you also work a station. Here is a hypothetical week with made-up figures. A sous chef is paid $1,400 a week, which is $72,800 a year, so the salary clears both the 2026 and 2027 lines. The sous chef works five 10-hour days, 50 hours.

16 of 50 hours is 32 percent. The test needs more than 25 hours. On those facts, the duties test would not be met. If the same week had 30 hours of management work, the answer could flip, which is why your own numbers matter.

Now the pay, step by step:

1. Regular rate. For a full-time nonexempt salaried employee, Labor Code section 515(d) sets the regular hourly rate at one-fortieth of the weekly salary. Here $1,400 divided by 40 is $35 an hour.
2. Time and a half. $35 times one and one-half is $52.50.
3. Overtime hours. Ten hours a day for five days is two hours past eight each day, so 10 overtime hours.
4. Extra pay for the week. 10 hours at $52.50 is $525 on top of the $1,400.

Section 515(d) also says paying a fixed salary covers only the regular, nonovertime hours "notwithstanding any private agreement to the contrary". Any hour past 12 in a day is double time, which here is $70. The math assumes a standard schedule with no seventh-day work, and it is only as good as the hours behind it. California does not use the federal "fluctuating workweek" half-time method for a nonexempt salaried employee. You can also recover interest on the unpaid wages.

What if you work the line while you manage?

The California answer starts with Heyen v. Safeway Inc. (2013) 216 Cal.App.4th 795. A former assistant manager at a grocery chain said she spent more than 50 percent of her time on nonexempt tasks such as bagging groceries and stocking shelves. Safeway argued that all the hours in which she was managing and doing hourly work at the same time should count as exempt. The Court of Appeal disagreed: "Although there is some intuitive appeal to Safeway's contention, it is unsupported by California law." Instead, "the regulations look to the supervisor's reason or purpose for undertaking the task."

The full test: a task is exempt if it is done because it is "helpful in supervising the employees or contribute[s] to the smooth functioning of the department for which [the supervisors] are responsible". Otherwise it is nonexempt.

Where does covering a short-handed line fit? Two points:

• Purpose decides, and doing the crew's own work counts against you. Whether covering a station fits the "smooth functioning of the department" part of the test is a fact question. But the federal regulations Wage Order 5 incorporates also weigh against a manager who does the crew's own work. Section 541.115 says work of the same nature as the subordinates' work "must be counted as nonexempt work". Section 541.108(g) says that when supposed management work is really "production" work and takes up "a large part of the employee's time", it is "evidence that management of the department is not the primary duty".
• A real emergency is the exception. The federal regulation on emergencies that Wage Order 5 incorporates says a bona fide executive who "performs work of a normally nonexempt nature on rare occasions because of the existence of a real emergency will not, because of the performance of such emergency work, lose the exemption". By its words the rule is for rare occasions. Filling in on the line because the kitchen is short-handed every week is a different question from a one-time emergency.

Employers win some of these. In Batze v. Safeway, Inc. (2017) 10 Cal.App.5th 440, three assistant managers (first and second assistant managers at its stores) sued for overtime. The trial court ruled for the most part for the employer, finding they spent more than half their week on managerial tasks, and the Court of Appeal affirmed. It upheld a finding that, to the extent the managers spent excessive time on tasks hourly workers could have done, the employer realistically expected them to manage. On the five-month strike, it upheld the trial court's treatment of the strike as an emergency, noting that a strike, even a lengthy one, can be one. The strike claims also failed on other grounds: one manager's strike claim was filed too late, and the court did not believe the other manager's testimony about his hours. A court looks at how your hours actually broke down and at what the employer realistically expected.

Heyen is a grocery-store case under the retail wage order, not a restaurant case. Today's federal regulation says an assistant manager "can supervise employees and serve customers at the same time without losing the exemption". That is not the text Wage Order 5 incorporates. Heyen declined to follow the newer federal wording because neither the California Legislature nor the IWC has adopted it, so do not rely on a federal-law summary for a California claim.

What should you record? A task-time log you can start tonight

Your employer must keep time records showing when you begin and end each work period, and must keep them for not less than three years. Misclassified managers often have none. You are allowed to keep your own. The law says an employer "shall not prohibit an employee from maintaining a personal record of hours worked".

Start a simple task-time log and update it every shift, by day:

1. Start and end times, including the time you stayed to close, and any split shift.
2. Hours by task: line, prep, expo, dish, receiving, then scheduling, ordering, interviews, training.
3. Staffing: which station you covered and why, how many cooks you directed, and who actually made the hiring and firing decisions.
4. Meal and rest breaks: whether you took them.
5. Proof around the log: schedules, texts and messages, POS logins, door-code records, pay stubs and your offer letter.

If your employer's records are missing or false, you can still prove your hours. In Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, the court held an employee carries the burden by proving the work and showing its amount "as a matter of just and reasonable inference". The burden then shifts to the employer to come forward with evidence of the precise amount of work performed.

What can you recover if you were misclassified?

California law says an employee receiving less than the legal overtime compensation "is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit".

Other amounts may be in play, depending on the facts:

• Meal and rest period premiums. Wage Order 5 requires a meal period of at least 30 minutes for a work period of more than five hours. If it is not provided, the employer pays one hour of pay at the regular rate for each workday it is missed. Section 12(B) of the same order sets the same rule for rest periods. See California meal break penalties.
• Waiting time penalties. If an employer willfully fails to pay wages when you are discharged or quit, the wages continue as a penalty for up to 30 days (Labor Code section 203). That is a penalty for late final pay.
• Wage statement penalties. Labor Code section 226(e) gives a remedy for a knowing and intentional failure to provide a compliant wage statement. That is a penalty for wrong pay stubs.

The last two turn on what the employer knew, and employers dispute that. Labor Code section 1194.2(a) says nothing in that subdivision authorizes "the recovery of liquidated damages for failure to pay overtime compensation". So you do not recover double your overtime. See our guide to what you can actually recover for wage theft.

How long do you have to file, and how do you file?

The clock keeps running while you wait. Code of Civil Procedure section 338(a) sets three years for an action on a liability created by statute, other than a penalty or forfeiture, which includes the overtime claim itself. Unpaid overtime can also be recovered as restitution, meaning the wages are paid back to you, under the Unfair Competition Law. That law has a four-year period under Business and Professions Code section 17208, as the California Supreme Court held in Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163. Penalties have their own periods. Deadlines can run early, so talk to a lawyer promptly.

You have two routes. You can file a wage claim with the Labor Commissioner's Office, also called the Division of Labor Standards Enforcement (DLSE), or file a lawsuit in court to recover the lost wages. Wage claims "can be filed online, by email, mail or in person", and the office then schedules a settlement conference and, if the claim is not resolved, a hearing. Our guide to filing a wage claim with the Labor Commissioner walks through it.

Can your employer punish you for asking? Labor Code section 98.6(a) bars discharge or discrimination "because the employee or applicant for employment has filed a bona fide complaint or claim" about rights the Labor Commissioner handles. See California workplace retaliation laws. Our guide to split-shift pay covers another rule that often goes wrong in kitchens.

Frequently asked questions

Why are managers not entitled to overtime?

Some managers are not, but only when the employer proves every part of the executive exemption. That includes a salary of at least two times the state minimum wage for full-time work and more than one-half of the work time spent on management duties. A manager title alone does not remove overtime rights.

Can salaried employees get overtime in California?

Yes. The Labor Commissioner's FAQ says a salaried employee must be paid overtime unless they meet the test for exempt status. In 2026 that means a salary of at least $70,304 a year plus the duties test. A salaried employee who is not exempt is owed time and a half over eight hours a day or 40 hours a week.

Are supervisors exempt from overtime?

Only if they meet every element of the exemption. In a restaurant, that includes directing the work of two or more employees, having hire-or-fire authority or recommendations given particular weight, exercising independent judgment, and spending more than half of their work time on exempt duties.

Is a sous chef exempt from overtime in California?

Not automatically. A sous chef is judged on the same test as any other manager: the salary line, then the duties that fill more than half the week. One who mostly cooks and preps may be owed overtime. One who runs the department, directs two or more cooks and has a real say in hiring may be exempt.

Is a kitchen manager exempt if they also cook?

It depends on why you cooked and how often. California sorts each task by its purpose: work that helps you supervise or keeps the department running smoothly can be exempt, and other work is not. A real, rare emergency can still count as exempt work. The whole week's hours decide it, as the sections above explain.

How far back can I recover unpaid overtime?

Generally three years on the overtime claim itself. Through the Unfair Competition Law, up to four years of unpaid wages can be recovered as restitution. That four-year period covers the wages only, not penalties, which have their own periods. The clock keeps running while you wait, so talk to a lawyer promptly.

Ready to talk it through?

If you are salaried, called a manager and working long weeks in a kitchen, a short call can sort out which side of the line your week falls on, and the firm reviews wage and hour matters from anywhere in California. Tell us what happened for a free, confidential review.

The Law Offices of Jonathan J. Delshad is a Los Angeles based employment law firm representing employees across California in wrongful termination, discrimination, retaliation, harassment, and wage and hour matters. Representing employees is the core of the firm's practice. Mr. Delshad serves as Editor-in-Chief of the California Wrongful Termination Law Review and trained at Latham & Watkins. Recognition includes Super Lawyers (2022 to 2027), Best Lawyers (since 2017), and an Avvo 10.0 "Superb" rating. Reviewed for California employment law accuracy. Last updated: November 11, 2026.

Attorney advertising. This article is educational only and is not legal advice. Reading it does not create an attorney-client relationship, which exists only under a signed engagement agreement. Every case is different, and outcomes depend on the specific facts. Deadlines can run early, so consult a lawyer promptly about your situation.