Lots of people call our law firm and say, “My boss just switched me from hourly to salary. Is this legal?” What are the implications of being switched? Is it legal? Most importantly, how is that going to affect your pay going forward? This article tries to clear up some of the confusion over this common employment problem. Employment lawyers like us commonly get these questions so we thought we’d write a blog on the subject.
Overtime is the Still the Main Issue in 2016
One of the first things that everyone is concerned about is overtime. Companies often change an employees’ classification in an effort to pay their employees less money for the same amount of work. For example, lots of hourly employees work an hour of overtime work per day. But if they were paid a salary, they wouldn’t get paid that extra hour of OT. So sometimes this change is made for illegal reasons.
It would be helpful to talk about salary versus hourly payment structures. The presumption for California employees is that they are owed some basic employment rights. Along with meal and rest breaks, they are supposed to receive overtime compensation for all hours worked over eight in a day and/or forty in a week. They are also supposed to be paid double-time if they work more than twelve hours in a day. But CA employment law has built several exemptions to these rules. If you are properly classified as an exempt employee, the employer does not have to pay you overtime and can pay you a salary. Generally, employers want to do this because it makes their payroll much more stable and predictable.
Salary, Overtime, and Misclassification
It might be surprising to note that not every employee who is paid a salary is “exempt.” If the employee is misclassified the employer still has an obligation to pay overtime. Or if the employee is considered as non-exempt by the employer, they can still pay the employee a salary, but the employee is still entitled to overtime payments if they work more than 8 hours a day or 40 in a week.
Another common scenario is when an employer classifies an employee as exempt because the employee performs some job duties that constitute exempt duties. BUT, if the employee spends more than 50% of his or her time performing non-exempt duties, then the employee is misclassified and may be owed overtime pay.
Calculating the Overtime Rate in a 2016 Salary Misclassification Case
To figure this out you’ve got to do some basic math. You need to first figure out the employee’s pay rate. You take the employee’s annual salary, divide it by 52 (weeks in a year) to find the weekly salary, and then divide by 40 (the maximum straight-time hours worked). For example, Joe’s annual salary is, conveniently, $52,000/yr. His weekly rate is $1,000/week, and his “regular rate” comes out to be $25/hr.
Now you multiply that pay rate times 1.5. So if your pay rate came out to be $25/hr, your overtime rate would be $37.50/hr. Then you would multiple this overtime rate times the number of overtime hours worked (more than 8 in a day and/or 40 in a week).
Mr. Robertson has handled several misclassification cases where salaried employees have worked for two or three years without overtime compensation. When someone is working 2 OT hours per day that adds up to a large amount.
Statute of Limitations in Misclassification Overtime Cases
California overtime laws allow you to collect back wages for four years if you include an unfair competition cause of action. BUT, this rule is very deceptive and many good people are unable to collect a substantial portion of their lost wages because they delay taking action. Basically, it plays out something like the hypothetical below.
Hypothetical Recovery in Misclassification Case – Two Scenarios:
You worked for a company for four years as a misclassified salaried employee. You were getting paid a salary of $41,600 per year. You worked nine hours a day as opposed to the standard eight. But because you were misclassified and was paid a salary, you didn’t get paid for that extra hour each day.
Under this scenario, if you filed your case on your last day of work, you would be owed $31,200 (a total of $7,800 per year at $30 per overtime hour). This does not include penalties, interests, or attorney’s fees. That is just the overtime amount that you’re owed.
Under the same set of facts, if you quit and wait three years to file your lawsuit, you would only be owed $7,800. Therefore, the statute of limitations ate away at your damages substantially.
Don’t Wait – Call an Employment Lawyer ASAP
Please keep in mind that both of the situations above are more complicated than what is presented and have various exceptions for each. But due to the statutes of limitations, it is wise to call an overtime attorney immediately if you think you’ve been misclassified. If you feel as though you should be receiving overtime, contact Mr. Robertson so that we may give you a free consultation.