Exempt or Non-Exempt

An employee’s title is not what is controlling in determining whether they are truly Exempt or Non-Exempt. In California, under the Labor Code as well as Industrial Wage Orders, a 50/50 test is used. TO be considered exempt from overtime, one must spend over 50% of their time performing managerial, non-administrative duties. If an employee does not perform managerial duties over half the time, they are entitled to overtime compensation under California Law. Therefore, under California law, it is the nature of an employee’s job duties, not their job title or the fact that they are paid a salary rather than by the hour. Accordingly, it has been discovered in many cases, that employers have been wrongfully depriving employees of earned overtime pay.

Furthermore, if an employee is wrongfully terminated or harassed in retaliation for demanding overtime pay to which he or she is legally entitled, that employee may have a right to sue the employer for wrongful termination.

If you are concerned that your employer is not properly paying your wages, you should consult an attorney.