Attorney Jean-Claude Lapuyade

Employers sometimes misclassify workers to avoid overtime

Sadly, too many employers in the San Diego still misclassify workers as independent contractors.

But for the misclassification, these workers would receive the benefit of minimum wage laws and other valuable workplace rights and protections which California law offers them.

Unfortunately, this is not the only example of job misclassification. Employers may also try get around California’s mandatory overtime laws by paying an employee a salary and then declaring them exempt from overtime.

The end result is that an employee could wind up working for the equivalent of far less than California’s minimum hourly wage.

An employee is not exempt from overtime just because the boss pays a salary

San Diego residents should remember that the fact that they get paid a flat salary does not mean that they are not entitled to overtime.

Their job description must fall into one of several exemptions established under California law. In order to exempt an employee, the employer will have to check off several legal requirements.

Administrative, professional and executive employees must have discretion

For example, employers commonly rely on an exemption for administrative, professional and executive employees to avoid overtime. While there are reasons for this exemption, it is ripe for abuse.

Employers may be tempted, for example, just to make a person a “supervisor” or “manager” in name only. This is not allowed under California law.

To claim an exemption, an administrative, executive or professional employee must perform certain types of work and must be allowed to exercise considerable independence when doing that work.

This exemption also requires that an employee receive a minimum salary

Under California’s law, an exempt employee also pay these employees the monthly equivalent of two times California’s minimum hourly wage and for a 40-hour work week.

As of 2021, the minimum wage is either $13 an hour or $14 an hour, which translates to $520 to $560 a week.