retroactive overtime - CA

[lizh]

I work for major company in California. I was hired in my current position in 1996 as an exempt employee (no overtime). In 2003, my status was changed to non-exempt and I was required to fill out a time card and became eligablefor overtime. No change was made in my job description or job duties. I was told that my position had been miscategorized - hence the change. Am I entitled to retroactive overtime from my date of hire - 1996?

Thank you.
Lizh

[LConnell]

You could be...but you have a very limited period of time in which to make a claim. The state of California website says, "A claim based on an oral agreement must be filed within two years from the date the claim arose.
A claim based on a written agreement must be filed within four years from the date the claim arose. A claim for minimum wage, unpaid overtime, and other statutory claims must be filed within three years from the date the claim arose."

So, if you believe you are owed overtime, you need to file a claim as soon as possible as the clock is ticking.

Let me know if you have any other questions.

[lizh]

Dear LConnell, thank you for your reply. Can you advise me the best way to file a back overtime claim in the state of California? Thank you.

LizH

[LConnell]

The following website provides information on how to file a wage claim. Thanks. http://www.dir.ca.gov/dlse/howtofilewageclaim.html

[lizh]

Dear LConnell, thank you for your reply. I approached my employer about my back overtime and was told that I am not entitled to it. The reason I was given is that periodically the company reviews all jobs and given their conservative approach and after this review, my job was deemed to be a non-exempt, salaried position. As I mentioned in my prior e-mail, I have been doing the same job since 1996. This last company review did not result in any changes in my job description or job duties - simply, the company felt that it was now a non-exempt, salaried postion. I am leaning towards filing a claim anyway...do you think that I have a case? Thank you for your advise.

lizh

[LConnell]

Yes, I believe you do. If the company says that you are non-exempt and are eligible for overtime AND your job has not changed, it goes to reason to ask why wouldn't the hours you worked before be considered as overtime.

A salaried non-exempt person means that the person is paid a basic salary rate to cover all hours worked up to 8 in a day/40 in a week, even if you do not work a full schedule. However, you are still entitled to overtime for hours worked over 8 in day or 40 in a week, if you are in an overtime eligible position.

Because I don't know the particulars of your job, etc., I would strongly suggest you file a claim with the state. FYI - Your employer is prohibited from retaliation against you when you file such a claim.

Good luck and let me know if you have any other questions.

[lizh]

Dear LConnell, thank you for your encouraging reply. I will definitely file a claim with the State of CA. Your response, however, brings up another question. As an exempt employee since 1996, I was paid a flat weekly salary regardless of the number of hours in a day or the number of days that I worked in a given week. When my status was changed to non-exempt, salaried, (by the way, I was not the only one - many other employees' status changed as well) we were called into a group meeting with a human resource representative and told that we were no longer guaranteed forty hours and that we would only be paid for the actual number of hours worked. In other words if we are not physically in the office for the full 8 hours, we are not paid. If we take time off for personal matters, doctor appointments, etc. we are docked or we must use our sick time - can an employer do this? Thank you.

lizh

[LConnell]

Yes, though that isn't really a salaried position any longer. If they guarantee a certain base pay, not deducting money for missed hours in a day, then overtime can be paid at half time (rather than the time and a half required for traditional hourlyl positions.)

I'm not sure why they call your position salaried. You are being paid on an hourly basis so you should be getting overtime. Let me know if you have any other questions.

[SASSY]

first time on this site and not sure how to use it

Need some good information

Our company has just emailed saying working hours will be increased
We are already putting in our 8 hours plus --- 8:30 to 4:45

Please note when we were hired it was 8:30 to 4:30 - 1 hour for lunch and 2 fifteen minute breaks per day

We are all salaried employees not paid by the hour
Company is increasing the work day to 8:30 am to 5:OO pm
There is to be no compensation for this additional time

Can they do this ?
They will be getting an additional 1/2 hour without having to pay for it

Not sure if I have forwarded this properly but can someone please give me some information

[LConnell]

If you truly are exempt (salaried exempt), then there is no maximum to the hours your employer can require. However, it seems unusual that an entire company is exempt. What is your job and what state are you in?

[LConnell]

As I posted the reply, I noticed that you are in Ontario, Canada. A good link to Ontario's laws on maximum hours is at: http://www.cbsc.org/ontario/english/...7?OpenDocument

The question is still whether you are truly exempt. I look forward to hearing from you.

[SASSY]

We Are Canadian In The Province Of Ontario
The Company Is American Though

Job Position Is Rms Division ( Corporate )

[LConnell]

A great chart that can assist in determining if you are truly exempt may be found at: http://www.gov.on.ca/LAB/english/es/...s_covered.html

If, after looking at the chart, you determine that you are non-exempt (covered) by the law, then there is a maximum number of hours for which you can be required to work (see the last post's website).

Let me know if you have any other questions.

[gcc]

I have been 'exempt' for 3 years now, and recently learned that I cannot legally be exempt.. I have worked 50 hr weeks all of this time with no o.t. compensation. However, as a salaried employee I have not punched a clock and have no proof of my o.t. Do I have a chance at recovering some of this back o.t. or not? I'm in so. Cal.
Thanks all.

[cbg]

You don't have to provide proof of ot. Your employer has to provide proof that you didn't work it.

File a complaint for unpaid overtime with the state DOL - what can you lose?

[gcc]

Thanks, I think I'm gonna do it.

[mtracy]

An important note on the issue of the statute of limitations. Under California Labor Law, you can only go back 3 years for your claim (assuming there was no contract for the wages). However, if you file in court, rather than going through the labor commissioner, you can go back 4 years under an unfair competition statute.

Michael Tracy
Attorney

Disclaimer: The above response is a general statement of California law. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.