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Hourly and Salary combo California

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  • Hourly and Salary combo California

    So here is my situation: I'm a chef in San Diego and I was hired as an hourly employee (@15.00 hr). Several people quit within a week resulting in the remaining staff picking up the hours. On what would have been my 7th consecutive day I agreed to be switched to salary (@34000 yr). This change resulted in 4 days of hourly and the remaining at salary on my last pay check. I was only given the salary rate. Should I be compensated for the additional days worked on hourly? (And no contract has yet to be seen.)
    The second question is this: Is there a limit to the hours that can be worked in a week or the number of days worked without a day off? During this pay period I received only one day off, and was working about 12 hour days. Are there regulations protecting employees health and safety in such a situation?
    If anyone can give me any idea of how to calculate my wages that would be great.

  • #2
    Parts of your questions I can answer. First of all, things like "hourly" and "salary" are just payment methods that mean next to nothing by themselves. What is legally important is Exempt vs. Non-Exempt. Very basically, all employees are inherently Non-Exempt until/unless the employer can show that one of the 100 or exceptions from minimum wage or overtime applies.

    I am not expert on the Exempt classification of chefs. I can say that the job title is legally meaningless, and that the exact duties must be examined in detail. I can say that someone who flips burgers is Non-Exempt, and someone who has a bunch of subordinate chefs reporting to them is Exempt. I can not say exactly what the "bright line" is where a cook (non-exempt) becomes a chef (Exempt), but it is not the job title. At the end of the day, CA-DLSE gets to make that call.

    Past that, lets say for the sake of discussion, let's say that you pass the duties tests for one of the Exempt classifications. Under CA law you would still need to pass a salary basis test, which in CA is $640/week. This whole "part of the time you are salaried and part of the time you are hourly" makes no sense (IMO). Your employer is going out of it's way to take something simple and mess it up. If you really are Exempt (not yet established), then they should pay you a salary of at least $640/week and not try to see how many rocks they turn over by messing with the payment method.

    Regarding working a reasonable number of hours per week, do not hold your breath. Most states, including CA, mostly do not care about this. CA has a barely useful rule that you can only be forced to worked 24 out of every 28 days. There are a few occupations (airline pilots, long haul truck drivers for example) with limits on hours worked but as far as I know these laws are a function of public safety and there are no laws limiting time worked for cooks/chefs that I am aware of. In most states it would be perfectly legal to require you to work 24/7/365. Not possible, not also not illegal.

    Patty knows more about cook vs. chef classification rules then I do.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      Generally speaking, "executive" chefs who can meet the criteria for exempt status, don't do much cooking. They manage sous chefs and cooks, design food offerings, manage the purchasing process, decide on suppliers, things like that.
      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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      • #4
        Sounds like vanilla "Executive" or "Administrative" exceptions largely unrelated to cooking. I always assumed that it was at least possible for the "Professional" exception to be possible if one's credentials got sufficently weighty. Say training in France, plus some published cooking books. I also assume that CA and the feds probably have some opinion letters based on prior employers testing limits in this area.

        http://www.dol.gov/esa/whd/regs/comp...irpay/main.htm

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        Just a thought, but the OP could always just file a wage claim with CA-DLSE. It works or it does not, but the legal burden of proof the the employee is Exempt would be on the employer. If there is a ton of unpaid overtime, we could have some serious dollars on the table over time. If nothing else, the OP needs to hard document all hours worked. Keep the record at home. A paper notebook is good.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

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