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It is not possible in the limited
space of a website to provide a complete dissertation of state and federal
wage and hour laws sufficient to enable the reader to evaluate his or her
own personal situation and come to valid legal conclusions about it.
The law is never black and white, yes or no, right or wrong.
Employment legal problems are always unique to the parties involved, and
must be individually evaluated by attorneys to determine the best course of
action to take to resolve them. Employment legal issues are viewed
differently from the perspectives of the employers and employees, the attorneys who
represent them, the judges and juries who hear the cases, and the reviewing
courts that issue opinions that set the course of the law. The law is
always evolving either by judicial decree or by legislative enactment to
meet the challenges of the quickly changing workplace. It is foolish
for an employee or employer with an employment legal problem to believe that
he or she does not need to confer personally with an attorney before
deciding which course of action to take to resolve a problem. Most
of the time, failing to get good legal advice merely leads to more serious
legal problems and greater aggravation, time and expense in resolving
them. Employees who do not get good legal advice before taking some
action with their employers often find themselves being written up,
suspended, demoted, or fired. Employers who do not get good legal
advice before taking some action with their employees often find themselves
involved in a legal proceeding. These are not good results and having
gotten good legal advice in advance might have avoided
it. The following is a very brief overview of wage and
hour law and is presented here merely to give employees and employers a
sense of what questions to ask an attorney when seeking advice about wage
and hour matters.
 | Many employers and employees mistakenly believe
that if an employee is paid a weekly or monthly salary, that employee is
not entitled to receive overtime pay. Whether an employee is
entitled to receive overtime pay is not determined by the manner in
which the employee is paid. The determining factor is whether the
employee is properly classified as an "exempt" employee or as
a "non-exempt" employee.
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| Generally speaking, the overwhelming majority of
employees in the workforce in the State of California are non-exempt
employees. With few exceptions, non-exempt employees are entitled
to the full benefits of the wage and hour laws, including the right to
receive minimum wage and overtime pay. For decades, some California
employers have kept their labor costs down by telling their employees
that only employees who are paid on an hourly basis and not those
who are paid a salary are entitled to be paid overtime. In the last several years,
employees have finally won substantial legal battles against some of
these employers to be paid their
overtime. Most of these legal battles have been won as class
actions.
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In another effort to keep labor costs down by not paying minimum wage, overtime and other benefits,
some California employers classify their employees as independent contractors. Very few persons who work in the
State of California are properly classified as independent contractors.
The legal requirements for qualifying as an independent contractor are very
strict, and most persons in the workplace just do not meet those requirements.
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| Some California employers require or permit their non-exempt employees to skip breaks or lunch, or to take breaks or
eat lunch while continuing to work. This is unlawful. Generally, the
law requires morning and afternoon paid breaks for employees who work a full day, and
requires at least a half hour unpaid lunch break. If an employee is required or
permitted to continue to answer work-related questions, to answer the telephone,
to go through the mail, or to do any other work-related task during rest or
lunch breaks, the employer has violated the law. Breaks are just
that--free time for the employee to do non-work related activities of the
employee's choice. It is unlawful for an employer and employee to agree
that the employee will skip breaks or lunch. That means it is
unlawful for an employee to come in late to work or leave early in
exchange for skipping lunch except where the employee works fewer than
the statutory hours.
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An exempt employee is an employee who is exempt from the
protections of some California wage and hour laws such as
overtime pay. Non-exempt employees are not
exempt and must be afforded the full protections of the wage and hour
laws. Whether an employee is exempt or not is determined by law and
not by the intentions or desires of the employer or the employee. An
employee cannot be properly classified as exempt merely because the employee
is paid a salary, paid high wages, given a fancy or glorified title, receives
benefits, or agrees in writing that he or she is an exempt employee.
Unless the employee satisfies all of the requirements under California law
for being classified as an exempt employee, that employee may not lawfully be
treated as an exempt employee.
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Generally, persons engaged in the active practice of one of
the nine professions are exempt from wage and hour laws. The
professions are law, medicine, dentistry, pharmacy, optometry, architecture,
engineering, teaching and accounting. There are also exemptions for
executive and administrative employees. These last two exemptions are the areas
where employers often wrongfully classify an employee as exempt by paying the employee a
salary and giving them a fancy title like Manager, Assistant Manager, Administrative
Assistant, Executive Secretary, and similar titles. Most employees who have these titles do not qualify as exempt
because their employers do not actually permit them to exercise the
authority those titles imply. A truly exempt executive or
administrative employee must have actual authority to make decisions, set
policy, give
orders and supervise other employees. That means that to be exempt,
the executive or administrative employee must be able to do such things as
hire, discipline and fire employees, set rates of pay and hours of work,
apportion and direct the work of others, plan the work, set and enforce
policy, control the flow and distribution of materials, merchandise and
supplies, and perform similar work.
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| Exempt managerial work would include such
considerations as should the business downsize, hire more employees,
change marketing strategies, expand into other cities, states or
countries, diversify, try to take over a competitor, spend more on
research and development, file for Chapter 11 protection? Those
are executive decisions. "Managers" and Executive Secretaries and
Administrative Assistants do not make such weighty decisions.
Deciding whether to order supplies from Office Depot or Staples is not
an executive decision. Booking the boss' travel on United rather
than American is not an executive decision. Deciding to order
three cases of Granny Smith apples rather than two is not an executive
decision. That is not to say that the decisions non-exempt
employees make are not important. It merely means that if over 50%
of the employee's workday is spent making production
kinds of decisions, then the employee is a non-exempt employee who is entitled to be paid
overtime for any overtime hours worked.
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| The following is not exempt managerial
work: ordering supplies, unloading trucks, stocking or filling
tables, shelves, cabinets or drawers, building displays or anything
else, cleaning floors, shelves or any other surface, organizing
supplies, product or storerooms, cashiering, answering telephones,
taking or filling orders, filling out forms no matter how lengthy,
complicated or official, providing customer service, preparing food for
sale, bookkeeping, performing secretarial tasks, performing bookkeeping
tasks, delivering or picking
up packages or product, driving a vehicle, or performing any other task
that is necessary for the routine operation of a business.
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| If you are an employer who has classified any of
your employees as exempt or as independent contractors, or if you are an
employee who has been classified as exempt or as an independent
contractor by your
employer and would like more information to determine whether the
classification is accurate, you should contact an attorney who
concentrates his or her practice in employment law for legal guidance.
Also, you may contact us and ask to speak with Jules
Sandford or Lorraine grindstaff.
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