Exemption Misclassification

The vast majority of laws pertaining to labor regulations in California can be found in Labor Code Division 2. Employment Regulation and Supervision [200 – 2699.5], specifically here. Some notable excerpts include:

510. (a) Eight hours of labor constitutes a day’s work.

(c) An employer shall not reduce an employee’s regular rate of hourly pay as a result of the adoption, repeal, or nullification of an alternative workweek schedule.

512. (a) An employer shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes

Nonexempt employees are those who are subject to certain laws and regulations. Employers in California that have more than 25 employees must pay their workers a minimum wage of $11.00 per hour, for instance. This is a state-wide law, although some cities do circumvent it to raise the minimum wage.

Employees who are not exempt can receive the following benefits:

• 1.5x their hourly rate if they work over 40 hours in a workweek, over 8 hours in a single day, or the first 8 hours on the 7th consecutive day of work
• 2x their hourly rate if they work over 12 hours in a single day or over 8 hours on the 7th consecutive day of work
• 1 20-minute meal brek period for any work day over 5 hours long, and a 2nd meal break if the workday is over 10 hours long
• 1 10-minute rest period per 4 hours worked in a day

There are various ways that these rights can be waived, however. For example, it is not uncommon for part-time workers to waive their meal periods if they only work up to 6 hours per day (bear in mind that the employer must agree to this waiving, as well). Any instances of forced work during meal breaks or rest periods require the employer to pay a full hour of wages to the worker. Workers must not be forced to complete any job responsibilities or be forced to stay on the premises during their breaks.

In order for an employee to be exempt from certain wage and hour laws, his job situation must meet three requirements. These requirements are as follows:

• Salary: The employee's salary (which is a set amount of money not contingent upon hours worked) must be at least twice the amount of the state minimum wage.
• Duties: The employee's duties must primarily be "white collar," or pertain to administrative (filing, sorting, etc), executive (managerial, supervisory, etc), or professional (lawyers, doctors, scientists, creatives, etc) duties.
• Judgment: The employee's job duties must involve the worker's independent judgement and discretion, such as when he is free from being overridden or has no authority above him

The labor code specifically states the following:

Division 2. Employment Regulation And Supervision, Part 2. Working Hours, Chapter 1, Section 515 (a):The Industrial Welfare Commission may establish exemptions from the requirement that an overtime rate of compensation be paid pursuant to Sections 510 and 511 for executive, administrative, and professional employees, if the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.

Additional professions that are subject to exemption (with certain qualifications or restrictions) include the following:

• Commissioned employees, like car salesmen
• Licensed surgeons or physicians
• Computer professionals or IT engineers
• Private school educators
• External or outside salespersons
• Truck drivers
• Union workers and those under CBAs
• Live-in employees
• Personal aides
• Counselors
• Ambulance drivers and EMTs
• Farmers

Often, employers will do all they can to make their workers exempt from wage and hour laws. The employee must indubitably meet the requirements and eligibilities to be considered exempt, and these must be demonstrated by the employer.

Often, employers will do all they can to make their workers exempt from wage and hour laws. The employee must indubitably meet the requirements and eligibilities to be considered exempt, and these must be demonstrated by the employer.

Employers can be fined if they misclassify their workers and refuse to pay out overtime. They can pay an extra hour per missed meal period or rest period. They can pay paystub penalties, waiting time penalties, and more. These are often small amounts, usually no more than $200, so for large companies they may be a drop in the bucket if the times are few, but for smaller companies, the amounts can add up quickly.

Yes, you can sue your employer if he misclassifies you as exempt. To prove that you are a nonexempt employee, you must show that you do not meet the eligibility requirements of the law. Fortunately, the law is in your favor.

In order to sue, you should acquire ample evidence of the misclassification. You should follow these steps:

• Keep pay stubs showing the discrepancies
• Keep a log of your hours, rest periods, meal breaks, and more
• Retain video evidence showing the times you were kept after work or forced to miss breaks
• Get statements from coworkers or other individuals to back up your point that you were not classified correctly
• Print a copy of your job duties as defined in the listing, if possible
• Show your salary history and pay history
• Produce a journal of your time and hours
• Try to resolve the issue internally with HR or with your employer
• Contact a lawyer to move forward with a claim

It is wise to hire an attorney to handle your claim for you. There are many nuances to the law and you may have a lot of trouble navigating them yourself. You will best be served by a lawyer who understands employment law and can get you the payment you need from misclassification.

If you file a misclassification against your employer, you can receive various forms of compensation for your losses. You are eligible to secure restitution such as:

• Overtime hours that were not paid out, whether 1.5x or 2x your rate of pay
• Violations of minimum wage payment
• Time taken for rest breaks, meal periods, and more
• Back pay from time you worked but were not paid
• Missed income if you were fired in the midst of the lawsuit

You can also make it a point to have your legal fees and court costs paid off by your employer, which can total a fair amount of money. It is not right for you to have to pay these debts if your employer is the reason they racked up in the first place.

The statute of limitations exists to ensure that lawsuits are filed within an acceptable amount of time and that they are not saved for the most opportune date. California law dictates the following statutes of limitations for lawsuits against your employer:

• 3 years for wage claims
• 2 years for breach of oral contract concerning payment or reclassification
• 1 year for late wage claim penalties

Many employees do not know that they have a deadline on their cases. It is crucial that you understand the time limit imposed on your case and that you take all necessary steps to ensure that your lawsuit is filed with the correct channels in the proper time frame. Failure to do so will result in your inability to secure ample compensation for your losses during your time of employment.