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exempt vs. non exempt and OT California

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  • exempt vs. non exempt and OT California

    I just had a hearing with the California labor board regarding unpaid over time. I was paid a salary, but wasn't allowed to make a lot of administrative decissions, thus I am trying to get over time pay, plus some vacation pay owed to me. The witness I called lied about my job duties, (My job title was Manager, at a coffee shop), claiming that I worked 70% of the time doing administrative duties. In fact I only did about 20%. I was asked if I was allowed to repremand employees and I answered no. Also, my ex boss produced a false job description which I never signed, and claimed that the employee hand book was a "draft" thus trying to get out of the vacation pay he owed me. Again, the witness lied saying they had never seen the draft. My bosses never kept time records for me, but I had my hours and OT hours. Also, I wasn't paid twice the minimum wage based on a 40 hr. work week which I heard was a requirement for an exempt employee. So, basically it is my word against theirs, who does the labor board side with usually in a case like this? (As a side note, my witness is a member of the board who fired me, but I expected this person to be truthful inspite of this.)
    Last edited by momyto2; 10-14-2008, 04:10 PM.

  • #2
    momyto2: I wasn't paid twice the minimum wage based on a 40 hr. work week which I heard was a requirement for an exempt employee. So, basically it is my word against theirs, who does the labor board side with usually in a case like this?

    Why do you think "it is my word against theirs?" If you were not paid twice the minimum wage based on a 40 hour week [and this can be esaily verified through payroll records like your W-2 Form and company-prepared DE-6 form (which is furnished to the state every quarter], you should prevail - regardless of whether or not you spent more than 50% performing administrative/managerial job duties. Hopefuilly, you stressed this point to the DLSE hearing officer.
    Barry S. Phillips, CPA
    www.BarryPhillips.com

    IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

    Comment


    • #3
      To BSPCPA

      Thanks for your reply. The first point I brought up at the hearing was my hourly wage which had been documented by the book keeper's records of my monthly salary, (I presented them to the hearing officer.) This had been given to me by the book keeper when I was initially trying to prove 2 weeks pay I was owed, (and which the company paid me after I proved it.) I didn't specify the fact that I wasn't being paid twice the minimum wage, but the DLSE hearing officer had his calculator out at that point and was calculating away.

      When I said "it is my word against theirs" I was referring to the amount of time I did admin. work which was 20% vs. the untruth of 70% the witness claimed. It sounds like this may be a moot point though in light of the wage issue. In other words, if they didn't pay me 2X the min. wage based on a 40 hr. work week then it sounds like any points they attempted to prove won't really matter.

      Also, they had a forged job description which I had never seen, and it wasn't signed of course. I asked repetedly for one, but it was never made. Will they get fined for not having a signed job description?

      Plus the fact that there wasn't an official employee hand book they claim, but if it was the only hand book the business owned, wouldn't it be considered the employee hand book and would they be fined for this as well?

      Another question: If I win and they appeal this to the superior court how much could they end up paying in legal fees? I heard it could take up to a year for the trial to end. It seems that they would end up paying more at the end of an appeal than if they just paid me the OT I'm owed now.

      Comment


      • #4
        momyto2: When I said "it is my word against theirs," I was referring to the amount of time I did admin. work which was 20% vs. the untruth of 70% the witness claimed. It sounds like this may be a moot point though in light of the wage issue.

        I agree.

        momyto2: Will they get fined for not having a signed job description?

        I think not, as the labor code does not require that employers even prepare job descriptions for employees.

        momyto2: Plus the fact that there wasn't an official employee hand book...

        Nothing in the law mandating that employers prepare employee handbooks either.

        momyto2: If I win and they appeal this to the superior court how much could they end up paying in legal fees?

        Impossible to quantify here, but will undoubtedly be "a lot" of money.
        Barry S. Phillips, CPA
        www.BarryPhillips.com

        IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

        Comment


        • #5
          A few more ?'s

          A few more questions:

          My ex employers didn't have any records of the hours I worked. I provided these records at the hearing. Will they be fined for not having records of the hours I worked, (whether I was proven to be exempt or not?)

          My ex employer brought a lawyer in from out of town, (a big city lawyer), which leads me to believe that they will appeal this if I win. Do most employers of small businesses appeal if they lose in a labor board hearing like this?

          Thanks again

          Comment


          • #6
            momyto2: Will they be fined for not having records of the hours I worked

            You seem overly concerned about wanting your employer to be fined. My advice: Focus your efforts on getting repaid the money that is owed to you.

            momyto2: My ex employer brought a lawyer in from out of town, which leads me to believe that they will appeal this if I win. Do most employers of small businesses appeal if they lose in a labor board hearing like this?

            I suspect most do not, but impossible to say what your company will do.
            Barry S. Phillips, CPA
            www.BarryPhillips.com

            IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

            Comment


            • #7
              Thanks for the advice - you have a good point there. I was trying to get into their heads and figure out why they tried to prove things that seem inconsequential to the case, (especially since the hourly wage issue is a big plus in my favor.) Thanks again for all the info. and advice!

              Comment

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