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Hourly to salary California

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  • Hourly to salary California

    My husband was hired on with a company as a welder with hourly pay. Last pay period, he worked a significant amount of overtime and his employer changed his pay status to salary without notifying him. Can they change the status without notifying the employees?

  • #2
    I am not going to address whether an employee should be informed before the are switched from non-exempt to exempt or vice versa.

    What the employer has done in this case is illegal.

    Welders cannot be exempt and must be paid for all hours worked. Time and a half must be paid for any work over 40 in a work week.
    Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

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    • #3
      Does it make a difference if he is a lead in the metal work shop? Or is he still classified as a "welder?"

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      • #4
        Depends on what his "primary" duty is and how much of his time is spent in nonexempt duties.

        Since California has stricter limitations than Federal, if he doesn't meet the federal criteria to be exempt, he wouldn't meet the California requirements either.
        http://www.dol.gov/esa/regs/complian...a_overview.htm
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          Blue Collar

          Fact Sheet #17I: Blue-Collar Workers and the Part 541 Exemptions Under the Fair Labor Standards Act (FLSA)

          The FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hour worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 in a workweek. However, Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempts certain computer employees. To qualify for exemption, employees must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week.

          Blue-Collar Workers

          The exemptions provided by FLSA Section 13(a)(1) do not apply to manual laborers or other “blue-collar” workers who perform work involving repetitive operations with their hands, physical skill and energy. Such nonexempt “blue-collar” employees gain the skills and knowledge required for performance of their routine manual and physical work through apprenticeships and on-the-job training.

          FLSA-covered, non-management employees in production, maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the FLSA, and are not exempt under Section 13(a)(1) of the FLSA nor the regulations at 29 CFR Part 541, no matter how highly paid they might be.


          Now, if your husband meets the executive exemption (below), he could be classified as exempt from overtime, but note what the requirements are:

          To qualify for the executive employee exemption, all of the following tests must be met:

          The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week;
          The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
          The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
          The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.
          Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

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          • #6
            Here are the Cal requirements (which are stricter)

            http://www.dir.ca.gov/dlse/Glossary....ve%20exemption
            Megan E. Ross, Esq.
            Law Offices of Michael Tracy
            http://www.gotovertime.com

            Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

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