If your CBA establishes a minimum wage for workers at your company that is at least 30% more than the legal minimum wage, you are exempt from overtime laws. The employee must “plainly and unmistakably” meet the standard required for the exemption.⁠72 Otherwise, the employee should be classified as nonexempt. An employee might also be considered administrative if they perform “functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein.” (Id. & Prof. Code, § 17203; Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 178 [“[A]n order that a business pay to an employee wages unlawfully withheld is consistent with the legislative intent underlying the authorization in section 17203 for orders necessary to restore to a person in interest money or property acquired by means of an unfair business practice.”].↥. Code of Regs., tit. (e)(1) [“An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney’s fees.”].↥, Labor Code, § 203, subd. Code Regs., tit. Non-exempt employees are entitled to meal breaks and rest periods.⁠79 Employers who misclassify their employees as exempt commonly fail to provide the required breaks. In general, an employee is only exempt if they are paid on a salary basis (rather than an hourly wage).⁠11 The salary must be at least at least twice the state minimum wage for full-time employment.⁠12, A salary, for these purposes, is an unvarying minimum amount of pay.⁠13 The employee’s pay must be predetermined, and cannot change based on the number of hours worked or the quality of the work performed.⁠14, Courts have suggested that employers can deduct from an employee’s pay for full-day absences and still consider the employee to be paid on a salary basis.⁠15 But the employee would no longer be considered “salaried” if the employer deducted for partial-day absences.⁠16, If the employee’s pay is based on the number of hours worked with no minimum guarantee, the employee will be treated as being an hourly employee (an thus nonexempt).⁠17, As mentioned above, California law requires the employee to be paid a monthly salary of at least twice the state minimum wage for full-time employment to qualify as exempt. is an associate of Melmed Law Group P.C. Code of Regs., tit. In addition, double time is paid for hours over 12 per day and hours over 8 on the seventh consecutive day in a week. Code Regs., tit. is responsible for all communications made on this website. An action upon any contract, obligation or liability founded upon an instrument in writing . This website contains "communications" within the meaning of rules 7.1–7.3 of the California Rules of Professional Conduct. (a) [“Eight hours of labor constitutes a day’s work. Employees who have been deprived of overtime pay because of a misclassification can seek back-pay for the unpaid overtime wages the employee earned.⁠75 These can add up quickly, even for employees earning a low amount. The state's minimum wage is scheduled to increase on January 1, 2021 and varies based on size of the employer. Co. (2003) 105 Cal.App.4th 171, 175.↥, Cal. 8, § 11040, subd. 8, § 11040, subd. However, employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level.”].↥, Cal. The new, stricter requirements for overtime exemptions The Department of Labor approved a new rule for (1)(A).↥, Labor Code, § 515, subd. Code of Regs., tit. 3.↥, Cal. California’s minimum wage laws (which help establish a State-wide minimum salary), state overtime laws, which provide for overtime pay if a worker works more than 40 hours in a workweek, 1 and laws allowing for rest periods and . (2010) 50 Cal.4th 1389, 1392⁠–⁠1401.↥, Code Civ. Nor do physicians covered by certain types of collective bargaining agreements.⁠45. Our consultations are free and confidential. California: In California, exempt employees must meet certain salary and duties tests and must be paid at least twice the state minimum hourly wage based on a 40-hour week. This article takes a look at exceptions to overtime laws. (a)(4); Memorandum re Overtime Exemption for Computer Software Employees (Oct. 22, 2019), available here (Opens in new window).↥, Cal. An employee is considered employed in an executive capacity when: Management includes such activities as hiring, firing, training, supervising, and disciplining employees; making work assignments; resolving employee grievances; maintaining production or sales records; ordering materials or inventory; and planning a budget.⁠31. This means that if you are paid … For the first pay stub violation, the employee is entitled to a $50 penalty.⁠84 The employee is then entitled to a penalty of $100 per pay period for every violation after that, up to $4,000.⁠85. This penalty often arises when the employee isn’t sure how much back-pay they might be owed because the employer mistakenly classified the employee as exempt. Co. (2005) 131 Cal.App.4th 260, 267; 29 C.F.R. Locations, Contacts, and Hours of Operation, Licensing, registrations, certifications & permits, All Orders, Section 1, except Orders 14 and 16, All Orders, Section 1, except Orders 14 and 15, Exempt from Orders, except Sections 1, 2, 4, 10 and 20, Any individual who is the parent, spouse, child, or legally adopted child of the employer, All Orders, except Orders 11, 12, 15, and16, All Orders, except Orders 11, 12, 15, and 16, Employees (except minors) whose earnings exceed one and one-half times the minimum wage and more than half their compensation represents, Exempt from Order 5, except Sections 1, 2, 4, 10, and 20, Exempt from Order 9, except Sections 4, 10, 11, 12, 20, and 22, Exempt from Order 10, except Sections 1, 2, 4, 10, and 20, Exempt from Orders, except Sections 1, 2, 4, 10, and 20, Employees whose duties are exclusively those of a, Exempt from Order, except Sections 1, 2, 4, 10, and 15, Any person under the age of 18 who is employed as a. . This includes being subject to … Eligible employees must be … 3.↥, See 29 U.S.C § 213 [federal exemptions]; Cal. 8, §§ 11010⁠–⁠11170, subds. If an employee has been deprived of their full pay due to being misclassified as exempt, they are sometimes entitled to receive this. The California Supreme Court evaluated Time Warner's arguments pursuant to the traditional rules that California's overtime requirements "are to be construed broadly in favor of protecting employees," while overtime exemptions are Code of Regs., tit. (2008) 167 Cal.App.4th 507, 513⁠–⁠514 [salary cannot be “subject to reduction because of variations in the quality or quantity of the work performed”], quoting 29 C.F.R. Occupations to which special overtimes rules apply include: In many cases, there are specific legal definitions for these kinds of jobs. The department shall adjust this threshold rate of pay each October 1, to be effective the following January 1, by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.”].↥, Labor Code, § 515.5, subds. Instead, they will be considered exempt if: Employees who are considered “outside salespersons” are generally considered exempt employees.⁠54 An outside salesperson is defined as someone: Some truck drivers are exempt from California’s overtime laws (but not other employment rights, like meals breaks or the minimum wage).⁠56 This exemption applies to interstate truck drivers and drivers who transport hazardous materials.⁠57, In those situations, the drivers’ hours are controlled by either: federal regulations,⁠58 or California’s motor vehicle regulations.⁠59, Union employees are sometimes exempt from California’s overtime laws.⁠60 To qualify as exempt, the employees must be employed under a collective bargaining agreement that expressly provides for the wages, hours of work, and working conditions of the employees.⁠61, The collective bargaining agreement must also provide premium wage rates for all overtime hours worked and a regular hourly rate of pay of at least 30 percent more than the state minimum wage.⁠62. Call (619) 234-2833 today to schedule your free consultation with a California employment law attorney at the Mara Law Firm. Code of Regs., tit. Code of Regs., tit. In California, the general overtime provisions are that a nonexempt employee 18 years of age or older, or any minor employee 16 or 17 years of age who is not required by law to attend school and is not otherwise prohibited by law from engaging in the subject work, shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless he or she receives one and one … (c) [excluding short-term productivity bonuses, bonus and profit-sharing plans that are not based on a fixed percentage of sales or profits, and “[t]emporary, variable incentive payments that increase, but do not decrease, payment under the written contract” from the statutory definition of a commission].↥, Memorandum re Overtime Exemption for Licensed Physicians and Surgeons (Oct. 22, 2019), available here (Opens in new window)↥, Labor Code, § 515.6 [“Section 510 shall not apply to any employee who is a licensed physician or surgeon, who is primarily engaged in duties that require licensure pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code, and whose hourly rate of pay is equal to or greater than fifty-five dollars ($55.00). California law is governed, in part, by a series of regulations called wage orders, which have been issued California’s Industrial Welfare Commission.⁠63 The wage orders have adopted several exceptions to California’s overtime laws, in addition to those listed above, that apply to workers in specific industries or jobs. The exceptions to overtime pay are called “exemptions” because if you Some of the most common examples are below. Code of Regs., tit. There are three types of professional employees that can qualify for exemptions: The professional employee exemption is fact-specific and depends on the nature of the work that the employee primarily undertakes. Employees in the computer software field are sometimes exempt for the purposes of overtime compensation.⁠46 To qualify for this exemption, the following requirements must be met: Many teachers are exempt under the professional exemption described above. We use a written attorney-client agreement and no attorney-client relationship is formed with our firm prior to the signing of that document, unless otherwise explicitly agreed to. Once they hit 12 hours a day, workers 8, §§ 11010⁠–⁠11170, subds. (3)(D), 11070, subds. Code of Regs., tit. Secretaries, store clerks, bookkeepers, and lead operators on production lines cannot be classified as administrative employees because they do not help run the business. California nonexempt employees who work all week (7 days consecutively) are also eligible for overtime on Sundays. Outside of those particular exemptions, every other hourly worker in California is entitled to at least $9 per hour. If this article was helpful, you already know you can trust us. . California law provides for a variety of penalties for Labor Code violations. Overtime Exemptions More workers will be exempt from California’s specific, and generous, overtime wage provisions. 1(C).↥, See Cal. In addition to the main exemptions explained above, a handful of other occupations are exempt from some or all of California’s labor laws. Certain classes of employees are exempt from the overtime provisions of the Fair Labor Standards Act. 8, §§ 11040, subd. To be exempt, the employee must make over 1 1/2 times the minimum wage, calculated on a monthly basis. Employees who are paid on a commission basis are sometimes exempt from California’s overtime pay laws. Or the employee may seek administrative relief by filing a wage claim with the commissioner pursuant to a special statutory scheme codified in [Labor Code] sections 98 to 98.8.”].↥, Code Civ. However, it doesn't just stop and start with the law. This calculation gives us a monthly salary that is equal to twice the state minimum wage for full-time employment.⁠22. Their primary duty is the management of a business or one of its departments; They regularly direct the work of two or more other employees; and, They have the authority to hire and fire employees, or to make recommendations about hiring, firing, promotions, and wages that are given particular weight.⁠. California overtime law requires employers to pay eligible employees twice their rate of pay when those employees have worked more than 12 hours in a workday or more than eight hours on their seventh consecutive day of work. Executive employees receive little direct supervision. Code of Regs., tit. The exceptions to overtime pay are called “exemptions” because if you meet the qualification, you will be “exempt” from overtime pay. Code of Regs., tit. In general, this website is an advertisement for attorney . As mentioned above, certain employees are exempt from California and federal laws governing overtime.⁠6 There are usually three simple requirements to determine whether a worker is an exempt employee under California law: In addition to this three-part test, there are several types of exemptions that apply to specific jobs or industries, which are discussed in Chapter 5. California exempts executive employees from its minimum wage and overtime requirements. (1)(C).↥, Cal. Overtime Exemptions In California, there are many industries and professions that are exempt from the overtime requirement. To fall under this exemption, the physician or surgeon must: The applicability of this exemption is limited. Employees who get commissions instead of salary are often exempt from California’s overtime pay protections, as well. .”].↥, See Bus. )↥, Cal. Additionally, the employer may be obligated to pay the legal costs and attorney fees that the employee incurred while pursuing their overtime wages.⁠76, In some cases, there may also be a penalty of $100 or $200 per pay period in which California’s overtime laws were violated.⁠77 That penalty is normally payable to the State of California, but there are some situations in which the employee can recover up to 25% of it.⁠78. Co. (2005) 131 Cal.App.4th 260, 267 [“It is undisputed that the combined effect of these provisions of federal law is to preclude employers from docking the pay of an employee for an absence of less than a day (a partial-day absence). 3.↥, Cal. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee.”]; see also Labor Code, §§ 511, 514, 515.↥, Labor Code, §§ 210, 225.5; Labor Code, §§ 2698⁠–⁠2699.5.↥, See, e.g., Cal. Resolve their dispute informally with their employer. and takes his cases through Melmed Law Group P.C. Employees who have been improperly classified as exempt have three basic options: The best way to resolve an exemption dispute will depend on the employee’s specific situation. § 207; Labor Code, § 510, subd. 8, §§ 11010⁠–⁠11150, subds. 8, § 11090 (3)(L); 49 C.F.R. To determine whether an employee is employed in an administrative, executive, or professional capacity, we look at which duties the employee actually performs⁠—⁠regardless of job title or how the job is defined in a position description.⁠24, Importantly, the white collar duties test focuses on the employee’s primary duties. (a); Cal. § 541.602(a).↥, Conley v. Pacific Gas and Elec. (a); see McLean v. State of California (2016) 1 Cal.5th 615, 619 [“An ’employer’ that ‘willfully fails to pay’ in accordance with sections 201 and 202 ‘any wages of an employee who is discharged or who quits’ is subject to so-called waiting-time penalties of up to 30 days’ wages.”].↥, See Reynolds v. Bement (2005) 36 Cal.4th 1075, 1084 [“The employee may seek judicial relief by filing an ordinary civil action against the employer for breach of contract and/or for the wages prescribed by statute. (1)(A)(3) [defining professional employee under California law].↥, 29 C.F.R. Exempt from overtime provisions Order 14 Any employee who is engaged in work that is primarily intellectual, managerial, or creative , and which requires exercise of discretion and independent judgment, and for which the remuneration is not less than two times the monthly State minimum wage for … An employee is considered employed in an administrative capacity if their primary duty is office or nonmanual work directly related to management or general business operations.⁠27, Work relates to management or general business operations when the employee assists in running the business.⁠28. 8, §§ 11010⁠–⁠11150, subds. .”].↥, Cuadra v. Millan (1998) 17 Cal.4th 855, 859.↥, See Code Civ. Code of Regs., tit. They teach students who are in kindergarten or any of grades 1 through 12, They earn at least twice the state’s minimum wage, and, They hold a baccalaureate degree (or higher) from an accredited institution of higher learning, or they meet the requirements for a teaching credential from California or any other state.⁠, Who spends more than half of their working time away from their employer’s place of business, and, Who sells items, services, contracts, or the use of facilities.⁠, Certain providers of 24-hour residential childcare;⁠, The employer’s spouse, children, and parents.⁠. To qualify as an executive employee, an employee must: perform duties and have responsibilities that involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; Guide to California’s Minimum Wage Laws in 2020 and Beyond. (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.”].↥, Labor Code, § 515, subd. 8, § 11140, subd. 1(D).↥, Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 562 [“Exemptions are narrowly construed against the employer and their application is limited to those employees plainly and unmistakably within their terms.”].↥, Ramirez v. Yosemite Water Co., Inc. (1999) 20 Cal.4th 785, 794⁠–⁠795 [“[T]he assertion of an exemption from the overtime laws is considered to be an affirmative defense, and therefore the employer bears the burden of proving the *795 employee’s exemption.”].↥, Labor Code, §§ 204, 510, subd. Proc., § 340, subd. 3, 11150, subd. § 541.300 [defining professional employee under the federal FLSA]; Cal. Code of Regs., tit. 8, § 11050, subd. 13, § 1200, et seq. Those include: This article explains these exemptions in greater detail, as well as what happens when employers fail to property classify their employees under California Law. An action to enforce that obligation therefore is governed by the three-year statute of limitations . Specifically, a delayed payment can result in a penalty of up to 30 days of the employee’s wages.⁠86 The unpaid wages accrue on a daily basis, not just for the days that the employee might have worked⁠—⁠but also on non-workdays. (c); Cal. Employees who work overtime are entitled to 1.5 times their normal hourly pay, or “time and a half” for each hour worked over 8 hours per day or 40 hours per week. Importantly, employers are only entitled to claim an exemption when an employee “plainly and unmistakably” meets the standard required for the exemption.⁠10 When doubt exists, the law generally requires the employee to be classified as nonexempt. (a) [requiring employees to “customarily and regularly exercises discretion and independent judgment in performing” the duties of their job].↥, Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 562 [“Exemptions are narrowly construed against the employer and their application is limited to those employees plainly and unmistakably within their terms.”]; Arnold v. Ben Kanowsky, Inc. (1960) 361 U.S. 388, 392 [80 S.Ct. 8, §§ 11010⁠–⁠11170 [wage orders of the California Industrial Welfare Commission].↥, Cal. (1)(A)(2) [defining administrative employee under California law]. In simple terms, to fall under the administrative exemption in California you must spend over half of your time working for an owner of a business, or other employee who is exempt from overtime, or with only general supervision. If the salary requirements are met, the next question is whether the employee is employed in an administrative, executive, or professional capacity.⁠23 This is sometimes called the “white collar duties” test. Proc., § 337, subd. (2)(M).↥, See, e.g., Cal. 8, § 11150, subd. The law is somewhat unsettled, but some penalties for the late payment of wages may be subject to a one-year statute of limitations.⁠92 Other penalties, however, are subject to the normal three-year statute of limitations.⁠93, In some cases, a claim for unpaid wages (but not penalties) can be pursued as late as four years after the claim began to accrue. Code of Regs., tit. Proc., § 338, subd. The Los Angeles employment lawyers of Kokozian Law Firm fight for the rights of employees who have been wrongfully terminated, discriminated or sexually harassed at work. Certain unionized employees that are subject to a collective bargaining agreement.⁠, Workers in specific occupations that have special overtime rules.⁠, The right to a minimum wage (provided, of course, that they met the minimum salary requirement).⁠. There are also exemption tests that must be met. Updated August 16, 2020. Working for over 6 days in a single workweek also qualifies a worker for overtime. Employees should keep in mind, however, that there are strict deadlines they need to meet to file a wage claim or lawsuit. For these purposes, Full-time employment is considered 40 hours per week.⁠18, As of January 1, 2020, there are two possible amounts for an employee’s minimum wage. Find out more about this topic, read articles and blogs or research legal issues, cases, and codes on FindLaw.com. § 541.202(a) [“In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered.”].↥, 29 C.F.R. The Department of Labor has proposed a $35,308 salary threshold for the white-collar exemptions from overtime pay under the Fair Labor Standards Act. New California Law Restores Daily Overtime. (3)(D).↥, Labor Code § 204.1 defines commissions as “compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.” (See also Areso v. CarMax, Inc. (2011) 195 Cal.App.4th 996, 1003.↥, See Labor Code, § 2751, subd. Many, but not all, employees in California have a right to be paid overtime wages. (a) [statute of limitations: “Within three years: (a) An action upon a liability created by statute, other than a penalty or forfeiture.”]; Aubry v. Goldhor (1988) 201 Cal.App.3d 399, 404 [“[A]n employer’s obligation to pay overtime compensation to his employee would not exist but for the Labor Code. But some teachers at private schools are exempt even if they don’t meet those requirements. (3)(A).↥, Cal. If you any attorneys or law firms mentioned on this website, you are initiating a professional relationship with us within the meaning of rule 7.3, subdivision (a)(2), of the California Rules of Professional Conduct. (a) [statute of limitations: “Within one year: (a) An action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation.”].↥, Pineda v. Bank of America, N.A. The Department of Labor has proposed a rule to raise the minimum salary workers must earn to qualify for “white collar” exemptions from $23,660 per year to $50,440 per year. § 541.2; Negri v. Koning & Associates (2013) 216 Cal.App.4th 392, 398 [“[S]tate law requirements for exemption from overtime pay must be at least as protective of the employee as the corresponding federal standards.”].↥, Labor Code, § 515, subd. Employees that work for an employer with 25 or fewer employees are entitled to a minimum wage of $12.00 per hour.⁠19 Employees that work for an employer with more than 25 employees are entitled to be paid $13.00 per hour.⁠20. Examples of duties that relate to management or general business operations include responsibility for marketing, research, budgeting, finance, accounting, purchasing, quality control, human resources, labor or government relations, regulatory compliance, and database administration.⁠29. Employees usually have three years in which to make a wage claim under California law.⁠88, The clock begins to run at the time the wages first become legally due. There are, however, several types of employees that do not have a right to earn overtime pay at an increased rate. Federal law extends that time to three years if the misclassification was willful.⁠97, 29 U.S.C. If the employer failed to keep proper records of the employee’s work, the employer may be obligated to pay the employee a penalty pay stub penalty.⁠83 The amount of the penalty depends on the number of pay periods that the violation lasted. The overtime period or extra hours for nonexempt employees begins after 8 hours of work per workday or after 40 hours of work per workweek. 8, §§ 11010⁠–⁠11150, subds. Any employee who is engaged in work that is primarily intellectual, managerial, or creative, and which requires exercise of discretion and independent judgment, and for which the remuneration is not less than two times the monthly State minimum wage for full time employment.Â, (Elevator, Ride & Tramway, Pressure Vessel), Permits, Registrations, Certifications, & Licenses, Worker Safety & Health in Wildfire Regions, Electronic Adjudication Management System, Commission on Health and Safety and Workers' Compensation (CHSWC), Employees in the computer software field, Title 49, Sections 395.1 to 395.13, Hours of Service of Drivers. ’ s total compensation ) [ “ Within four years: 1 every other hourly in. Who misclassify their employees as exempt, they are sometimes entitled to receive this [ wage Orders the... Physician or surgeon must: the applicability of this exemption is limited misclassify their employees work hours.⁠1... 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The three-year statute of limitations was willful.⁠97, 29 C.F.R need to meet to file a wage claim or.! To receive this enforce that obligation therefore is governed by the three-year statute of limitations strongly advise you personally your... Gas and Elec paid … Certain classes of employees that do not have a right to be exempt, are. Who misclassify their employees as exempt, they are sometimes exempt for exemption.⁠72. Has been deprived of their full pay due to being misclassified as exempt, the or. A look at exceptions to overtime laws years: 1 13 of the employee should be as... 3.↥, See Code Civ entitled to recover unpaid overtime plus interest against employers such as overtime.!: the applicability of this exemption is limited 7 days consecutively ) are exemption! Overtime employees who get commissions instead of salary are often exempt from the provisions! Should be classified as nonexempt the law Labor Standards Act is limited a! Under this exemption, the employee must “ plainly and unmistakably ” meet the standard for...

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