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Review of who an “exempt” employee is for overtime

Most San Diego workers are aware that hourly employees have to be paid overtime, at one-and-a-half times their normal hourly wage, if they wind up working more than 40 hours in a given week. However, many if not most employees in the area are not hourly workers but rather receive a regular salary.

Presumably, these people do not get overtime because their salary accounts for the fact that they may have to work for extra hours from time to time. In theory, the reverse is also true, and the employee may not have to work full hours in a given week, although in practice it is rare that an employer would just let an employee frequently go home early or come in late.

Nonetheless, both California and federal law allow employers to pay certain types of employees on salary and thereby exempt those employees from overtime. If a worker does not fall in to one of the exempt employee classifications, then the employer must either ensure the employee does not work more than 40 hours a week or must arrange to pay overtime.

Two of the common exemptions, which are also ripe for employer abuse, are the exception for “professional” employees and an exception for employees who are in management, particularly middle management.

One thing to bear in mind about the managerial employee exception is that there is a minimum salary a manager has to make before an employer can declare him or her exempt from overtime. Specifically, the manager must make at least two times the California minimum wage, which, at $10.50 an hour for employers who employee more than 25 workers, translates to well over $40,000 a year, quite a bit more than the federal minimum salary for exempt managerial employees.

Employers may try to take advantage of their middle management by getting around these overtime laws in some way. For those who have been wrongly deprived overtime, legal relief may be available.


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