Attorneys for Improper Classification for Overtime
California has strict laws regulating overtime provisions for nonexempt workers. Exempt workers, if properly classified, are not eligible to receive certain benefits such as overtime pay, meal breaks or reimbursement of expenses incurred for work purposes. In many instances, an independent contractor may have been misclassified as such based on the work being performed and their control by the employer and is, by law, a non-exempt employee who is entitled to a number of benefits including overtime wages.
If you suspect that you have been improperly classified as an exempt employee or independent contractor, contact The Law Offices of Alex G. Tovarian.
Failure to Properly Classify
Since an employer is not required to provide certain benefits to exempt employees, many employers either intentionally or not classify certain workers are exempt, including those hired as “independent contractors.”
Administrative, Professional or Executive Employees
An exempt employee is someone who:
- Has an administrative, professional or executive position
- Who regularly and customarily exercises discretion and independent judgment in their work
- Receives a salary for work performed rather than for time
- Directs the work of at least 2 other full-time employees
- Whose salary meets certain minimum income earnings
You may not be considered exempt if more than 20 percent of your work time is engaged in activities not directly related to your administrative or executive duties. If you are in the retail industry, no more than 40 percent may be spent on non-exempt duties.
You would not be considered an independent contractor if your work fit certain criteria:
- Your employer supplies the tools, computer, workplace and other machinery for you to use
- You are routinely paid the same amount without having to submit invoices
- Perform the same work as other employees
- You may not hire other workers to assist you or to subcontract
- You work full-time for a long duration without any specific termination date
- You have no other clients
If your job fits these descriptions and you are considered an independent contractor, you should consider a consultation with an attorney from our offices to discuss possible claims for compensation.
Overtime in California is any work exceeding 8 hours in one day or more than 40 hours in a work week.
You must be paid one and a half times your regular hourly rate for each hour worked overtime, or double your rate if you work more than 12 hours in one day. If you work for 7 consecutive days, you are entitled to double your wage rate for all hours more than 8 on the seventh day of work.
Your employer may not circumvent the overtime laws by requiring you to work overtime one day and then allowing you to come in late the next.
You are also entitled to a 30 minute meal break for every 5 hours worked or receive one hour of wages if none are provided. This also applies if your employer fails to give you a 10 minute break for every 4 hours worked.
If you are performing as a non-exempt employee, your employer is also obligated to reimburse you for commuting mileage, cell phone expenses, internet expenses and office supplies.
Employers who violate California’s overtime laws are subject to substantial damages to the aggrieved employees as well as fines for violation of the state’s labor laws.
For example, an employer who fails to pay low earning, non-exempt workers for meal breaks not provided may have inadvertently violated the state or city’s minimum wage law, exposing the employer to considerable fines and penalties. Also, the workers may recover up to four years of unpaid breaks.
Other damages recoverable include:
- Interest on all due and overpaid wages from the date the overtime pay was due and payable
- Record-keeping penalties for up to $4000 if your employer failed to maintain itemized wage statements
- Penalties for overtime violations at $50 per underpaid employee for the first violation and $100 for each subsequent one
- Attorney’s fees and costs.
Contact The Law Offices of Alex G. Tovarian
Determining if you have been misclassified as an exempt employee or as an independent contractor and the damages to which you may be entitled can be complicated and requires the services of the overtime violations lawyers at The Law Offices of Alex G. Tovarian. We have the experience, resources and knowledge to handle improper classification for overtime cases.