An Employment Lawyer Helping Employees Who Are Owed Overtime
Some of the largest multi-million dollar verdicts and settlements against companies for back pay and overtime are because a company misclassifies employees as exempt when the employees were really nonexempt.
The key to whether you are eligible for overtime is whether you are classified as an exempt or nonexempt employee.
- An exempt employee is NOT entitled to overtime pay.
- A non-exempt employee MAY BE entitled to overtime pay.
How Do You Know If You Are Exempt or Non-Exempt?
You probably won’t know for sure without checking with an overtime attorney. That’s why overtime attorney Philip W. Ganong in Bakersfield, CA, offers you a FREE, CONFIDENTIAL, no-obligation consultation.
However, employees who are determined to be exempt are said to be “engaged in work which is primarily intellectual, managerial, or creative” and “which requires exercise of discretion and independent judgment.” There are various exemptions that apply to different positions. Typically, executives, administrators, professionals and outside sales people are considered to be exempt.
It is the employer’s responsibility to prove that specific requirements for an exemption apply.
Why Your Classification Matters
The classification of employees is very complicated. If you are misclassified as exempt, you may be giving up your rights and compensation for:
- Overtime pay
- Meals-and-Rest breaks
- Some benefits
- Vacation pay
If you think you may be misclassified, an overtime attorney at Ganong Law will be able to provide you guidance.
California Law and Overtime
For employees classified as non-exempt (meaning you’re entitled to overtime), California considers overtime to be:
- Time over 8 hours per day must be paid at the rate of 1½ times your regular rate of pay.
- Time over 12 hours per day must be paid at the rate of 2 times your regular rate of pay.
- Time over 40 hours per week must be paid at the rate of 1½ times your regular rate of pay.
Being Salaried Does Not Determine Your Classification
How you are paid does not determine if you are classified as exempt or nonexempt. For instance, inside sales people are non-exempt whether or not they are on salary, paid hourly, or by commission. Therefore, they are usually eligible for overtime.
Titles Do Not Make You Exempt
Whether you are classified as exempt or non-exempt is not determined by your title. The only thing that determines whether you should be getting overtime pay is your job activities.
Substituting Comp Time for Overtime
Employers are not permitted to substitute comp time instead of paying overtime. Even if you agree to it, employers must still pay you overtime.
Record-Keeping Is the Duty of the Employer
The employer has the obligation – or burden of proof – to prove that you are NOT OWED overtime since it is the employer’s job to keep time records.
If an employer has not kept accurate time records, then your reconstructed estimate is generally accepted by the court.
Some ways you can prove the hours you worked include:
- The employee can re-create a reasonable estimate of his typical day by his own testimony and multiply the number of days worked.
- A forensic analysis can be done on the employee’s computer to show when it was turned on and off and when emails were sent.
- The testimony of other witnesses.
Commuting Time vs. Travel Time
The time you spend commuting to and from work is not paid. Any time you spend traveling to and from your place of business on business, you should be paid for.
If you travel out-of-town, you also need to be paid for that, including time traveling to or from the airport, flying time, and meeting after-hours. You also may be due overtime pay for the hours worked while out-of-town.
"If you think you may be misclassified, an overtime attorney at Ganong Law will be able to provide you guidance."
Overtime Statute of Limitations
Under California law you can recover overtime pay that was not paid for up to three years and sometimes four years.
If you are found to be misclassified and/or if you were not paid the overtime you were due, you may be eligible for:
- Back overtime
- Interest at 10% on the overtime you should have been paid
- Penalties of your daily rate of pay for up to 30 days
- All unpaid overtime pay, doubled
- Attorney fees, which come from the verdict, settlement or judgment Golan Law earns for you so you don’t pay anything up-front
- court costs.
If you are found to be owed overtime, it is very possible that you also could be owed back pay and penalties for missed meals and rest breaks.
The Cost of an Overtime Attorney
If you think you should be paid (or should have been paid), overtime, contact a Ganong Law overtime attorney for a FREE, CONFIDENTIAL and no-obligation consultation at our Bakersfield, CA, law firm. Find out your legal options.
"Contact an overtime attorney at Ganong Law for a free, no-obligation, and confidential consultation."
Overtime Q & A
Q: Does the fact that I supervise two employees make me exempt from being paid overtime?
A: Not necessarily. Though one of the tests under the Executive exemption is whether you supervise at least two employees, you have to meet all of the qualifications to be exempt.
Q: Even though I have the title of “manager,” most of my time is spent doing the same work as my employees. Am I entitled to overtime?
A: California courts usually favors overtime claims for managers who do the same work as their employees at least 50% of the time. Titles do not determine whether or not you are eligible for overtime pay.
Q: Can my employer use my annual bonus as my overtime compensation?
A: No. Both California and federal law are clear how overtime is to be calculated and when it must be paid (by the next pay period).
Q: Do I have to work overtime if my employer requests it?
A: Your employer has the right to set your schedule and hours (unless you are an independent contractor, but then you are not eligible for overtime). If you refuse to work overtime, you can be disciplined and even fired, but any overtime work you do, you must be paid for.
Q: I agreed that I would work overtime and that the company would not have to pay me. Can the company hold that against me in an overtime lawsuit?
A: You cannot waive your right to overtime. If you work it, you must be paid as the law provides.
Q: What if my overtime was not authorized?
A: If you work overtime, you must be paid overtime, regardless of whether it was authorized. But the company does have the right to discipline you if you did not follow the company’s overtime authorization procedures.