the Corporation that I work for changed the classification of my position from salaried/exempt to hourly/non-exempt. Can I quit and collect unemployment? Do I have any options to fight this?

My position duties or expectations did not change. but they are changing the classification from salaried to hourly.

1 answer  |  asked Nov 7, 2016 4:59 PM [EST]  |  applies to California

Answers (1)

Marilynn Mika Spencer
The important issue is not whether you are paid a salary or paid hourly, but whether you are exempt from overtime or not exempt from overtime. An employee can only be exempt from overtime based on the what the law says, not based on what your employer decides.

Being paid a salary has nothing to do with how much you should be paid. Being paid a salary as opposed to being paid hourly is just for the convenience of the employer. Usually it is to an employee's benefit to be classified as non-exempt.

Most likely your employer changed you from salaried/exempt to hourly/non-exempt because it had incorrectly (that is, illegally) mis-classified you as exempt when you should have been classified as non-exempt.

The law assumes all employees are entitled to overtime, so the employer has to prove that someone is not. If you are non-exempt, you are legally entitled to overtime after 8 hours per day or 40 hours per week, per California law.

Also, if you are non-exempt, in an 8 hour work day you are entitled to at least 30 minutes for a meal break. You are entitled to two rest breaks of at least 10 minutes. If you are not allowed these breaks, you are probably entitled to an extra hour's pay for each day in which you did not receive a meal break, and also an extra hour of pay for each day in which you did not receive one or both rest breaks.

If you are not paid all overtime and other time due to you at the time your employment ends, you are entitled to waiting time penalties. This means your pay continues after your last work day; this pay continues until you are paid in full for all past due wages (including overtime and vacation pay), up to a maximum of 30 days. Note these are calendar days, not work days. You are also entitled to interest at the statutory rate of 10 per cent per annum.

So why would you want to be exempt from overtime?

It is not always easy to determine if an employee is exempt or not. An incomplete summary of the three main categories of employees who are exempt are:

EXECUTIVE/MANAGERIAL: The employee: has duties involving management of the full enterprise or a recognized division; customarily directs two or more employees; can hire or fire, or whose recommendations are given weight; regularly exercises independent judgment; earns a salary of $3,120 per month or more; and does all of this at least 51 per cent of the time.

ADMINISTRATIVE: The employee: performs office or non-manual work that is directly related to management policies or business operations OR performs administrative functions in a school in work directly related to instruction; regularly exercises independent judgment; regularly and directly assists an owner or bona fide executive or administrator; performs specialized or technical work under only general supervision; executes special assignments; earns a salary of $3,120 per month or more; and does all of this at least 51 per cent of the time.

PROFESSIONAL: The employee: is licensed to practice law, medicine, dentistry, optometry, architecture, engineering, teaching or accounting; works in (a) a learned or artistic professions that requires advanced knowledge in a field or science acquired by specialized instruction, or (b) works in a recognized artistic field, or (c) works in an intellectual capacity;and does all of this at least 51 per cent of the time.

Please do not try to decide if your job is exempt or not based on the above summaries; as I said, they are incomplete. Also, there are a number of jobs and circumstances that are exempt from overtime:

If you worked overtime or were not allowed to take breaks before the change in your classification – so that you may be entitled to overtime pay or to missed-break penalties – you will be well-served to speak with one or more plaintiffs employment attorneys with whom you can discuss the details of your employment.

To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope there is a good resolution to this situation.

posted by Marilynn Mika Spencer  |  Nov 7, 2016 7:53 PM [EST]

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