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  • California Hourly vs. Salary

    Hi everybody,

    My question is about the labor laws concerning being an hourly or salaried worker. I was just terminated from my company but while I was there I was being paid an salaried wage for a non-managerial, non-supervisory, non-creative job that amounted to content aggregation and mass emailing people. In addition, we were frequently asked to stay longer hours and work weekends.

    How illegal is this practice and what sort of fines does it carry? What sort of damages would I, and my coworkers be able to receive as a result.

    Thanks in advance.

  • #2
    By salaried I am going to assume you mean salaried exempt. i.e. you are not paid for working additional hours. If you believe you were improperly classified as an exempt employee and did not meet the test for exemption then by all means contact the CA DLSE. Many jobs may require you to work long hours and/or weekends at some point and this is legal. The question is are you or are you not due overtime premiums?
    My intention is not to argue over who is wrong/right. I am here for the discussion and to learn and teach. If you dislike what I have to say or think I question you when I shouldn't, then by all means add me to your ignore list.

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    • #3
      Yes, salary exempt. What is the best way of contacting the CA DLSE and should I consult with an attorney? What is the typical outcome of this sort of thing?

      Thanks in advance.

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      • #4
        You don't need an attorney at this point. The violation is failure to pay overtime when required. And maybe failure to provide the required meal periods and rest breaks. Do you have any of your own records regarding how much overtime you worked? That is what you would file for with the DLSE.
        http://www.dir.ca.gov/dlse/HowToFileWageClaim.htm
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          Well, unfortunately I don't have records of the exact time I overworked, but it was every day. In fact, my coworkers are still there putting in extra time each day as salary exempt workers doing the same thing I did, without breaks. I mean, I suppose we occasionally stopped working for a few minutes each day and then took our lunch whenever we wanted, but no paid overtime or paid weekends.

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          • #6
            Also, they regularly asked us to work on weekends at home and sometimes in the office. I only went in during one weekend though.

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            • #7
              There's nothing illegal about asking you to work weekends, either at home or in the office. This is true regardless of whether you are exempt or non-exempt.

              If you are correctly classified as exempt, there are no circumstances whatsoever in which you are legally entitled to overtime, no matter how many hours you worked.

              It's ONLY if you are incorrectly classified and should have been exempt all along that there's any question of your being due anything. Whether you are or not is something you'll have to take up with the DLSE.
              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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              • #8
                Did your employer keep records of when you worked?
                My intention is not to argue over who is wrong/right. I am here for the discussion and to learn and teach. If you dislike what I have to say or think I question you when I shouldn't, then by all means add me to your ignore list.

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                • #9
                  Originally posted by Villain View Post
                  Did your employer keep records of when you worked?
                  And the point being?

                  If the OP was called exempt and should not have been, the employer had no obligation to track hours. If the DOL (or DLSE) determines that the classification was wrong, they will estimate how much overtime is owed. The employer would be HELPED by having precise records, since it would limit the liability.
                  Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

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                  • #10
                    How can you be so sure only the employer, as opposed to the employee, would benefit from having records?
                    Last edited by Villain; 03-14-2007, 10:23 PM.
                    My intention is not to argue over who is wrong/right. I am here for the discussion and to learn and teach. If you dislike what I have to say or think I question you when I shouldn't, then by all means add me to your ignore list.

                    Comment


                    • #11
                      Originally posted by Villain View Post
                      How can you be so sure only the employer, as opposed to the employee, would benefit from having records?
                      Never mind. I didn't understand your question about employer records. I re-read the thread and get the point now.
                      Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

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                      • #12
                        Because we were all salary exempt, no records for anybody was kept. Everybody in the office stayed well past 8-9 hours and averaged 9-11 hours working each day. However, some are correctly classified while my entire department was non-managerial, non-supervisory, and non-creative, and therefore should be hourly instead of salary exempt.

                        None of my former co-workers are aware that they are misclassified and are staying in the office from 9-at least 7 each day. Most of the developers stay until 7 or 8pm each day.

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                        • #13
                          Again, regardless of whether you are exempt or non-exempt, it is legal to require you to be in the office for the hours you describe. Those who are incorrectly classified would be due overtime for the hours over 8 in a day, but the hours themselves do not violate the law.
                          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                          • #14
                            Right. I ended up talking to a lawyer and described my situation to him. He believes that I was in fact, incorrectly classified as were my coworkers in my department. So I guess what I was alluding to was that because we were incorrectly classified, we would be retroactively be due for all hours and breaks when we stayed past 8 hours worked in a day. For my coworkers, that would mean that are accruing even more due pay for the extra hours they're working each day. Of course, as long as they don't know, and the company doesn't change anything, we would not be entitled to that pay.

                            They lawyer wants to sue the company over this issue, and possibly on behalf of my coworkers as well. I was hoping to get some advice on if this would be a reasonable thing to do and what the outcome might be. Would it just be better to just report the company to CA DLSE?

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                            • #15
                              No, go to court with a lawyer. You are out a significant number of $ and I think going through the DLSE would be limiting yourself. Also, since you are no longer working for the company you should be awarded a waiting time penalty.
                              My intention is not to argue over who is wrong/right. I am here for the discussion and to learn and teach. If you dislike what I have to say or think I question you when I shouldn't, then by all means add me to your ignore list.

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