Our class action attorneys represent groups of employees in California who should be paid by the hour. Employers often pay large groups of employees a salary when the law demands they be paid by the hour. If an employer has labeled you as “exempt” and paid you a salary, when you believe you should be entitled to overtime as a “non-exempt” employee, contact our law firm for a free consultation. We represent employees across California on a contingency basis.
“Misclassification” for the Non Lawyer
A non-exempt employee is paid hourly. An exempt employee is paid a salary. Generally, the exempt employee does not keep track of his time and is not paid overtime. The non-exempt employee must be paid overtime if he works more than 8 hours in a day or 40 hours in a week.
According to California law, if you’re employed in an administrative, executive, or professional capacity your employer might not have to pay you overtime. Additionally, if you are a computer software professional, commissioned salesperson, or outside sales employee, your employer might not have to pay you overtime. This is because California law exempts these six categories from overtime requirements.
Not surprisingly, employers frequently misclassify large groups of workers as exempt to avoid paying overtime, even when the law does not permit them to do so.
General Exempt Standards – Employment Law
Generally, to be exempt under California law, an employee must:
- customarily and regularly exercise discretion and independent judgment in performing his duties; and
- earn a monthly salary equivalent to no less than double the state minimum wage for full-time employment (with minimum wage at $8.00 per hour, the minimum salary is $2,773.33/month or $33,279.96/year); and
- be primarily engaged in duties that meet the test of the exemption (usually identified in the applicable wage order)
If you work full-time and get paid less than $33,279.96 per year on salary, then you should be paid hourly. Note, the amount for a computer software professional is $75,000 per year. If you worked more than 8 hours in a day or more than 40 in a week, then you are owed your lost overtime wages.
What is critical in determining whether an exemption exists is the actual worked performed on the job, not the employee’s job title. Many employers call entire groups and classes of workers exempt even when they should not. Often this is unintentional. However, a good faith mistake does not relieve the employer of the duty to pay you and all employees similarly situated overtime. The only way to fix this is a class action.