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California - Do I qualify for overtime?

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  • California - Do I qualify for overtime?

    I am currently employed as a software consultant based in Florida, but I have been working in California for extended engagements for this year (Around 6 months total).

    During these engagements I have been living and working in California working at least 45 hours a week.

    My company in question is not based in CA, but has an office in CA. Based on my initial research on the overtimes laws in CA and given the fact that I don't meet the salary requirement and the exemption doesn't apply to entry level employees I believe I may be entitled to overtime under CA law.

    I know normally that I wouldn't be entitled to overtime in Florida, but what about California?


    Do you think I have a case?

  • #2
    Yes. Call up CA-DLSE for a better second opinion and discussion of options.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      You say "employed" but then you say "engagements" ...just to be clear are you an employee or an independent contractor? if an employee, then I definitely agree with DAW.

      You might also need to see the contract between your employer and the companies that are being consulted.

      And anything over 40 hours per week would also be OT in Florida.... (if I read that correctly)

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      • #4
        40/week is a federal rule, so IF you are non-exempt, then you are subject to overtime in all 50 states. And if you are not employee, then you are not subject to labor law.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

        Comment


        • #5
          Originally posted by hr for me View Post
          You say "employed" but then you say "engagements" ...just to be clear are you an employee or an independent contractor? if an employee, then I definitely agree with DAW.

          You might also need to see the contract between your employer and the companies that are being consulted.

          And anything over 40 hours per week would also be OT in Florida.... (if I read that correctly)
          I am employed full time at my company, but my company contracts me out to different clients for projects.

          How might the contract impact my overtime claim?

          I think it's quite likely my employer would claim I am exempt federally using the Computer Related Employee exemption (https://www.dol.gov/whd/overtime/fs17e_computer.pdf) which seems much easier to meet than the California standard.

          Is there something in my post that would make you think that I would be non-exempt under federal law?
          Last edited by evil_holden; 12-20-2017, 05:45 PM.

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          • #6
            Are you paid salary or hourly? If you are paid hourly, it would seem the company considers you non-exempt.

            Comment


            • #7
              "Based on my initial research on the overtimes laws in CA and given the fact that I don't meet the salary requirement and the exemption doesn't apply to entry level employees I believe I may be entitled to overtime under CA law. "

              I misread and thought that you were stating that you don't meet the salary and exemption under federal laws because you were an entry level employee, versus CA laws.... so right now are you being paid salary exempt by your employer in FL at a minimum the federal hourly rate? Are you exempt and paid by the hour or are you exempt salaried? Have you actually brought the issue to the attention of the employer (HR/payroll) and asked about the minimum per hour CA computer wage? It might be cheaper for them to claim you are still exempt and pay you the difference per hour between what you are making and the CA minimum wage than to pay you overtime -- and it seems that either would be legal. But under the exempt paid by the hour, they have to count all hours.

              The reason I brought up your contract is that often it (or the one between your employer and the client) defines how many hours and what the client will pay. Of course it is possible the client wouldn't know how much of the hourly rate being charged would be your wage, so they may think that you are making the minimum computer exempt wage per hour per CA standards. It would be interesting to know if the contract says anything but I doubt you will able to see a copy of the contract between the employer and the client.

              I was hoping DAW would stop in and give an opinion (eta I just saw that he recommended contacting the DLSE too), because your question is a tough one. I am slightly familiar with CA wage laws, but not enough to state for certain that you are owed. You might read through this-- it's a court case and a bit complicated : http://apps.americanbar.org/litigati...law-reach.html but the conclusion at the time of writing (2012) was :
              "It is unlikely that California courts will apply California’s overtime laws to nonresidents for work performed out of state. However, if a court can assert general or specific jurisdiction over an out-of-state employer, it could find that the California Labor Code applies to nonresident employees if they perform work in California. The jurisdictional and due process concerns posed by the court’s ruling in Sullivan II create a minefield for employers when it comes to nonresident employees performing work in California. Given the significant penalties that can be incurred for violations of labor laws related to overtime pay such as vacation accrual, meal and rest periods, and compensable travel time, defense attorneys should caution their clients who send employees to California for short-term projects or events, especially if they have California employees who could achieve the same result" There may be further cases that I didn't find though....it's kind of a tough search with a tough set of details!

              At this point I am not finding a definite answer for you -- the best thing might be to call CA DLSE and ask.....
              Last edited by hr for me; 12-21-2017, 09:09 AM.

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              • #8
                I know enough that this is not a simple yes/no question, and at the end of the day the only parties who mean anything is CA-DLSE. And for whatever it is worth, there is such a thing as Exempt Hourly.

                Focus on the out of state but working in CA for now. Worry about Exempt status if/when that is resolved. Do not lose track of what is the tail and what is the dog here. If CA says you are FL problems, then talk to the feds about the Exempt status. FL is on a good day is useless on labor law issues.
                Last edited by DAW; 12-21-2017, 10:42 AM.
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

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                • #9
                  Thanks for the replies. I am a salaried exempt worker. I think I may contact an attorney and see what my options are.

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                  • #10
                    CA-DLSE is free and they do not care what your attorney's opinion is. Most attorney's are contract law specialist and know little or nothing about labor law.
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

                    Comment


                    • #11
                      Agree with DAW that this is not a simple question, and a far better use of your time would be to contact CA-DLSE directly versus an attorney.

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