Non-Exempt Workers Misclassified as Exempt

California employers like to cut down on their payroll expenses in creative ways. One such way is to pay non-exempt employees as exempt; that is, they put a non-exempt worker on a salary and think that this should make them exempt from overtime, meal periods, doubletime, and more.


Glossary:

“Exempt” means the employee doesn’t need to be paid overtime or doubletime.

“Non-exempt” means the employee needs to be paid overtime and doubletime.


Putting a non-exempt worker on a salary does not make that employee exempt. A worker is exempt only if he or she fits into very narrowly defined categories.

Who is exempt?

Generally speaking, only professionals, executives, and high-level administrative employees are exempt, but then only if they are paid salary.

Usually, if an employee is paid a salary that, when divided by the number of hours in a work year (2080), is less than twice minimum wage, that employee cannot be exempt.

Certain computer programmers who are paid by the hour can be exempt.

Salespersons who earn 100% commission wages and spend more than 50% of their time selling outside of their office are typically exempt. So too are “inside salespersons” whose salary is made up of 51% or more in commissions and they make more than 1.5 times the minimum wage.

Who is non-exempt?

Most California employees are non-exempt. If an employee is paid on an hourly basis, then more than likely that employee is non-exempt.

Click on this link for more information about the difference between exempt vs. nonexempt.

Rights of non-exempt employees paid as exempt

A California worker who is misclassified as exempt more likely than not can bring wage claims against her employer for unpaid overtime, missed meal periods and rest periods, unpaid minimum wage, and unpaid doubletime. That same employee can also seek penalties against the employer for failing to pay all wages owed, so long as the employee no longer works for the employer. Interest at 10% on all wages owed is also available. Finally, if the employee brings a civil lawsuit in state court to collect unpaid wages, the employee can seek her attorney fees. (Attorney fees are not available if the employee brings a wage claim with the California Labor Commissioner/Labor Board.)

If you believe you are a non-exempt worker who was paid as exempt, contact a California wage claim lawyer for a free case evaluation.