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California overtime laws for W-2 Contracted employee California

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  • California overtime laws for W-2 Contracted employee California

    Working on a project in California, that I'm being W-2'd in california. I'm working 12 hour shifts, 6 days a week. My thoughts are that the final 4 hours each shift should be overtime eligible. My employer says that since i'm W-2 "contractor" that the laws do not apply? I can't find anything online that addresses this issue. Since it is 4 hours a day and i have been working nearly 8 weeks....its a pretty sizable sum. Please help.

  • #2
    If you are getting a W2 & are a non-exempt W2 employee, it seems you should be paid OT.

    What type of co. do you work for (do not name co.) & what is your job title & job duties?

    Thanks.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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    • #3
      I help install / consult end users when hospital systems are implementing new medical software systems. The actual company that employee's me would be the recruiters/head hunters/staffing company working with the software company that has the actual product being installed. Some projects I do with different companies and i'm a 1099 employee. This company has me as a W-2 "contracted". I'm not benefit eligible until i work X amount of hours with them in a calander year, if that matters???

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      • #4
        There is no such thing as a contracted employee. Either you are an employee or you are a contractor. If you get a W-2 at the end of the year, your employer has classified you as an employee; if you get a 1099 at the end of the year, your employer has classified you as a contractor. Employers have been known to make up their own classifications, either to avoid paying overtime or due to honest ignorance. Whichever it is, if you are getting a W-2 you are classified as employee, which is correct. That means that if you work more than 40 hours in a week (or, in your state, over 8 hours in a day) you are due overtime, no matter what your employer calls you.

        When or if you are eligible for benefits does not affect wage and hour laws.
        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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        • #5
          Originally posted by cbg View Post
          There is no such thing as a contracted employee. Either you are an employee or you are a contractor. If you get a W-2 at the end of the year, your employer has classified you as an employee; if you get a 1099 at the end of the year, your employer has classified you as a contractor. Employers have been known to make up their own classifications, either to avoid paying overtime or due to honest ignorance. Whichever it is, if you are getting a W-2 you are classified as employee, which is correct. That means that if you work more than 40 hours in a week (or, in your state, over 8 hours in a day) you are due overtime, no matter what your employer calls you.

          When or if you are eligible for benefits does not affect wage and hour laws.
          Is the poster exempt based as a Learned Professional?

          I used to work in the industry, and the hours described are at the far end of norm, but not unheard of. I've never known a software trainer/implementation specialist who is hourly, non-exempt.

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          • #6
            I have. And if you haven't, I suspect that some of them were mis-classified.
            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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            • #7
              Originally posted by cbg View Post
              I have. And if you haven't, I suspect that some of them were mis-classified.
              Wow! I've been reading this board for 7 years, and always thought my colleagues, peers, and I were under the professional exemption. It never even occured to me to question it, and now I see it's not as black and white as I thought. Thx, cbg.

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              • #8
                Originally posted by henbob6 View Post
                Is the poster exempt based as a Learned Professional?

                I used to work in the industry, and the hours described are at the far end of norm, but not unheard of. I've never known a software trainer/implementation specialist who is hourly, non-exempt.
                Agreed with CBG. These duties are normally non-exempt but as always, you need to look at each person's actual job duties one at a time, and not assume that the job title means anything.
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

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                • #9
                  SO much depends on the actual job duties, and not the job title. It's possible that, given everyone with the same job title, some might be exempt and some non-exempt, since different companies will assign different duties and responsibilities under the same title. California's definitions are more stringent than the Federal ones, and I reviewed the Professional definition for CA. Someone who is installing software is not likely - I won't say absolutely impossible if they have an advanced degree and do a great many other things besides installation, but unlikely - to meet the definition. A trainer might qualify, but the guy who installs it - probably not.
                  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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                  • #10
                    Agreed. But looking at a "trainer", they must have both a required degree and be credentialed by the state. Point in fact, not all "teachers" are Exempt, and all "trainers" certainly are not Exempt. With the Professional exception, there is a large element of Common Law, meaning the specific employee is only Exempt to the extent that their state has historically treated them as a Professional. An accountant can have 4-year accounting degree, and even a CPA and still maybe fail the job duties test. I can pretty much guarantee someone teaching Excel classes is non-exempt. There is nothing automatic about the Professional exception. And installing computer hardware and software is normally non-exempt.
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

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                    • #11
                      OP - sorry if I confused the issue! The EMR/EHR systems I'm most familiar with involve a lot of network/systems knowledge as well as interface configuration to connect with the hospital's myriad other systems - admitting, imaging, pharmacy, transcription, billing, etc. Nothing is plug and play - the installers' knowledge/training/experience are typically on level with the hospital's Senior Systems/Network Engineers. Best of luck to you - it's a great field to be in!

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                      • #12
                        Yep, that's why I said might instead of would.
                        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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                        • #13
                          Originally posted by henbob6 View Post
                          OP - sorry if I confused the issue! The EMR/EHR systems I'm most familiar with involve a lot of network/systems knowledge as well as interface configuration to connect with the hospital's myriad other systems - admitting, imaging, pharmacy, transcription, billing, etc. Nothing is plug and play - the installers' knowledge/training/experience are typically on level with the hospital's Senior Systems/Network Engineers. Best of luck to you - it's a great field to be in!
                          The greater the requirement for very specific degrees and certifications, and the more complex and more non-routine the job duties, the greater the likelihood that the Professional exception is in play. But today is not the first day in the history of the world. DOL will look to see how they handled similar positions in the past.
                          "Reality is that which, when you stop believing in it, doesn't go away".
                          Philip K. **** (1928-1982)

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