Deskin Law Firm

Overtime cases arise when employees are not paid properly. There are several rules that apply to paying non-exempt employees properly:

- If you work 4 hours in a day your employer must let you know that you are entitled to a 10-minute rest period that you can waive at your option.
- For every 5 hours you work in a day you must receive an unpaid 30-minute lunch break.
- If you work more than 8 hours a day you must receive time and a half until the 12th hour.
- If you work more than 12 hours a day you must receive double time for each hour over 12 hours.
- If you work more than 40 hours in a week you must be paid time and a half for each hour over 40 hours.
- Under most circumstances, an employer cannot require you to work more than six days out of seven in a row.
- If you work 7 days in a row you must be paid time and a half for the first 8 hours and double time after the first 8 hours.
- Depending on your line of work, you may not be required to work more than 72 hours in a week.

- You must be paid for travel time between job sites.
- You must be paid for activities you do before and after your shift starts.
- You must be paid for activities to prepare for work that are central to work activities.

- Your employer may dictate your schedule and hours and may require that work overtime. Additionally, under most circumstances your employer may discipline you, up to and including termination, if you refuse to work scheduled overtime.
- If you work overtime that is not authorized you must be paid for it, regardless of whether the employer has authorized it. But your employer can discipline you if you violate the employer's policy of working overtime without the required authorization. However, California's wage and hour laws require that you to be compensated for any hours you are "suffered or permitted to work, whether or not required to do so," meaning work you did that the employer knew or should have known about. So you cannot deliberately prevent the employer from obtaining knowledge of the unauthorized overtime worked, and come back later to claim recovery. Your employer must have the opportunity to obey the law.

» Contact Deskin Law Firm About Your Overtime Compensation Question

If you believe that you are not getting overtime wages when you should use our detailed Overtime Compensation Question form to send us a detailed question about your overtime situation.

Sometimes businesses do not realize that they are supposed to pay overtime for certain employees.

Other times, businesses make a simple calculation of the cost of paying overtime versus the cost of not paying overtime and taking the risk that they will not be sued for failing to pay it. Depending on how many employees will be affected, the reward of not paying overtime to their non-exempt employees may be lower than the risk for them getting sued for it.

At Deskin Law Firm we will help you determine whether we believe you are entitled to overtime by looking at the particulars of your employment situation. If we determine that you are entitled to overtime, we will help you get what you are owed whether this is a simple and non-confrontational letter and discussion on your behalf with your employer or employment litigation against your employer.

» Contact Deskin Law Firm About Your Overtime Compensation Question

If you believe that you are not getting overtime wages when you should use our detailed Overtime Compensation Question form to send us a detailed question about your overtime situation.

A highly compensated job may be considered exempt if it is one in which:

- you are guaranteed a total annual compensation of at least $100,000.

- your job customarily and regularly performed one or more identifiable executive, administrative, or professional functions.

Computer related jobs that meet several tests may be exempt from overtime. This is most commonly true of jobs with the title of:

- computer programmer,

- systems analyst,

- computer systems analyst,

- computer programmer analyst,

- applications programmer,

- applications systems analyst,

Outside salespeople are exempt from overtime, but only if they meet the following definition of outside salespeople:

- You must be over 18 years old, and

- Your primary duty must either making sales or obtaining orders/contracts for which a client or customer will pay, and

- You usually work away from your employer's place of business and at the customer's place of business or home, selling tangible or intangible items, and

- You are spending more than 50% of your time doing these "outside sales" duties.

- You receive commission-based compensation.

You are not considered an outside salesman if you make sales by mail, telephone, or the Internet or if you work from your home or your employer's office.

If you are a driver who delivers products and also sell these products you may be considered an outside salesperson if your primary duty, as in more than 50% of your day, is spent making sales.

There are other reasons you may be exempt from overtime that you may want to look into.

» Contact Deskin Law Firm About Your Overtime Compensation Question

If you believe that you are not getting overtime wages when you should use our detailed Overtime Compensation Question form to send us a detailed question about your overtime situation.

Just because you have a contract that refers to you as an "independent contractor" does not mean that you actually are an independent contractor. The actual relationship that you have with your employer must be analyzed to determine whether you are an employee or an independent contractor.

There are many factors to consider to determine whether you are an independent contractor or employee. The most important factor is your employer's right to control the manner and means by which your work product is accomplished. If you control how you produce your work product then you are more likely an independent contractor. If your employer controls how you produce your work product then you are more likely an employee.Employers oftentimes improperly classify their employees as independent contractors so that they, the employer, do not have to pay payroll taxes, the minimum wage or overtime, comply with other wage and hour law requirements such as providing meal periods and rest breaks, or reimburse their workers for business expenses incurred in performing their jobs. Additionally, employers do not have to cover independent contractors under workers' compensation insurance, and are not liable for payments under unemployment insurance, disability insurance, or social security.

Just because you have a contract that refers to you as an "independent contractor" does not mean that you actually are an independent contractor. The actual relationship that you have with your employer must be analyzed to determine whether you are an employee or an independent contractor.

There are many factors to consider to determine whether you are an independent contractor or employee. The most important factor is your employer's right to control the manner and means by which your work product is accomplished. If you control how you produce your work product then you are more likely an independent contractor. If your employer controls how you produce your work product then you are more likely an employee.

Other factors to be considered:
- the amount of skill required to do the work;
- who owns the tools needed to do the work;
- whether you are working at your own office or at your employer's office;
- how long you have been working for your employer;
- whether your employer has the right to assign additional projects to you;
- the extent of your employer's discretion over when and how long you work;
- how your employer pays you;
- if your employer hires and pays your assistants;
- whether your employer gives you benefits;
- how your employer treats you with regard to taxes;
- how the work relationship may be terminated; and
- whether you receive vacation time.

Partners are not employees, but you must truly be a partner. Factors to consider to determine if you are actually a partner include:
- whether you share of financial risks or benefits;
- whether you are personally liable for partnership liabilities;
- whether you are investing in the business;
- whether you have voting rights in the business;
- whether you have the right to fire or hire employees; and
- whether you have the ability to exercise control over the business.

The potential liabilities and penalties are significant if you are treated as an independent contractor and later found to be an employee. If you feel that you improperly classified as an independent contractor, contact us for help in dealing with your situation confidentially.

Professional, Executive and Administrative Employees are exempt and are not owed overtime. So, are you considered a Professional, Executive or Administrative Employee?

A review of each exemption is necessary to make sure you are not entitled to overtime because the names "Professional," "Executive" and "Administrative" can be a bit misleading.

Click on the links below to show the requirements of each exemption:

Executive Employees

An Executive Employee with ALL of the following characteristics may not be entitled to overtime:

1. Receiving at least two times the state's minimum wage as a salary for full-time employment. This is known as the "minimum salary level test." Assuming the minimum wage is $8.00 per hour with 2080 hours per year of work, that is $16,640. Times two is $33,280 or a monthly salary of $2733.34 per month.
2. The primary function of your job is managing the enterprise, or of a department or subdivision.
   

   - you have the authority to interview, hire, train and fire employees or at least you are expected to make recommendations,

   - you have the authority to set and adjust or at least recommend employees pay rate and hours of work,

   - you have the authority to direct the work of employees,

   - you maintain production or sales records for use in supervision or control,

   - you appraise employees' productivity and efficiency to recommend promotions or demotions,

   - you handle employee complaints and grievances,

   - you discipline employees,

   - you plan the work, determine the way it will be done and assign the work among employees,

   - you determine the type of materials, supplies, machinery, equipment or tools to be used to do work or the merchandise to be bought, stocked and sold,

   - you control the flow and distribution of materials or merchandise and supplies,

   - you provide for the safety and security of the employees or the property,

   - you plan and control the budget, or

   - you monitor or implement legal compliance measures.

3. Your job regularly directs the work of two or more full-time subordinate employees (or their equivalent part time employees, like 4 half-time employees). AND
4. You devote less than 50% of work time to activities other than managerial duties.

Business Owners

Business Owners are not entitled to overtime, if you actively manage employees and you own at least a 20 percent equity interest in the business.

Learned Professional Employees

Professionals can be either Learned Professional or Creative Professional.

As far as the Learned Professional Employee, if you have ALL of the following characteristics you may not be entitled to overtime:

1. Receiving at least two times the state's minimum wage as a salary for full-time employment. This is known as the "minimum salary level test." Assuming the minimum wage is $7.50 per hour with 2080 hours per year of work, that is $15,600. Times two is $31,200 or a monthly salary of $2600 per month.
2. You must have at least a four-year college degree and one year of specialized study to be in the profession. This means you must have a specialized academic degree or intellectual training. This exemption does not apply to jobs that most employees acquire their skill by experience rather than by advanced specialized intellectual instruction.
3. You must devote more than 50% of your time to performing work requiring advanced knowledge, meaning work which is predominantly intellectual, and not work that is routine mental, manual, mechanical or physical work.
4. Your job cannot be standardized, you must have considerable freedom about how to carry out your tasks, and general control over hours of work.
5. Your work must be in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. In most cases, only licensed or certified occupations are exempt and not entitled to overtime. Those employees who are not entitled to overtime include:
   

   - licensed lawyers practicing law (paralegals may be entitled to overtime) (minimum salary requirements do not apply to lawyers - they are nearly always exempt),

   - licensed physicians practicing medicine, interns and residents (minimum salary requirements do not apply to doctors - they are nearly always exempt),

   - dentists,

   - optometrists,

   - architects,

   - civil, mechanical and electrical engineers (junior drafters or unlicensed engineers may be entitled to overtime),

   - physical, chemical and biological scientists,

   - theologians,

   - actuaries,

   - tutors, teachers, lecturers, or professors, (minimum salary requirements do not apply to teachers - they are nearly always exempt)

   - certified public accountants (not un-certified accountants or bookkeepers), and

   - other occupations with a recognized professional status BUT NOT occupations that are in the mechanical arts or skilled trades where the knowledge could be of a fairly advanced type, but is not in a field of science or learning.

   - Advance Practice Nurses including: Certified nurse midwives, Certified nurse anesthetists, Certified nurse practitioners who are primarily engaged in performing duties for which certification is required,

   - EXCEPTION: registered nurses, employed to engage in the practice of nursing, are not considered exempt "professional" employees (nurses may also be entitled to overtime),

   - EXCEPTION: pharmacists, employed to engage in the practice of pharmacy, are not considered exempt "professional" employees (pharmacy technicians also may be entitled to overtime),

Creative Professional Employees

Professionals can be either Learned Professional or Creative Professional.

As far as the Creative Professional Employee, if ALL of the following characteristics apply to you, you may not be entitled to overtime:

1. Receiving at least two times the state's minimum wage as a salary for full-time employment. This is known as the "minimum salary level test." Assuming the minimum wage is $7.50 per hour with 2080 hours per year of work, that is $15,600. Times two is $31,200 or a monthly salary of $2600 per month.
2. Your primary duty is to perform work requiring invention, imagination, originality, or talent. This exemption is generally met by:
   

   - actors,

   - musicians,

   - composers,

   - soloists,

   - certain painters,

   - writers,

   - cartoonists,

   - essayists,

   - novelists, and

   - some journalists - if they collect, organize and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product, they are not exempt, but if they do work requiring invention, imagination, originality or talent, then they are exempt.

3. Your work must be in a recognized field of artistic or creative endeavor, like:
   

   - music,

   - writing,

   - acting, or

   - graphic arts.

Administrative Employees

An Administrative Employee with ALL of the following characteristics may not be entitled to overtime:

1. You are receiving at least two times the state's minimum wage as a salary for full-time employment. This is known as the "minimum salary level test." Assuming the minimum wage is $7.50 per hour with 2080 hours per year of work, that is $15,600. Times two is $31,200 or a monthly salary of $2600 per month.
2. You are devoting more than 50% of your time to performing office or non-manual work directly related to the management or general business operations of your employer, meaning you have to assist in the running of the business, or in the servicing of your employer's customers (like being an advisor, consultant or tax expert to your employer's clients). This could include work in areas of the business like:
   

   - tax,

   - finance,

   - accounting,

   - budgeting,

   - auditing,

   - insurance,

   - quality control,

   - purchasing,

   - procurement,

   - advertising,

   - marketing,

   - research,

   - safety and health,

   - personnel management,

   - human resources,

   - employee benefits,

   - labor relations,

   - public relations,

   - government relations,

   - computer networking,

   - Internet and database administration,

   - legal and regulatory compliance, or

   - other similar areas.

3. You customarily and regularly exercise discretion and independent judgment in the performance of intellectual work in which you evaluate possible courses of action and have the power to implement a decision on your own, free from immediate supervision after considering various possibilities with respect to matters of significance. It has to be more than the using skills in applying well-established techniques, procedures or specific standards described in manuals or other sources. Some factors that make it more likely that you are doing Administrative type work include whether you have authority to:
   

   - formulate, affect, interpret, or implement management policies or operating practices;

   - carry out major assignments in conducting the operations of the business;

   - perform work that affects business operations to a substantial degree;

   - commit the employer in matters that have significant financial impact; or

   - waive or deviate from established policies and procedures without prior approval.

There are other factors that may affect your ability to get overtime.

» Contact Deskin Law Firm About Your Overtime Compensation Question

If you believe that you are not getting overtime wages when you should use our detailed Overtime Compensation Question form to send us a detailed question about your overtime situation.

Overtime Wages are wages of 1.5 times your regular rate. Your regular rate includes all renumeration for employment paid to or on your behalf, including:

- hourly earning or salary,

- piece work earnings,

Depending on your line of work, you may have the right to refuse to work more than 72 hours in a week.

Professionals, Clerical (administrative assistants), Technical, and Mechanical Employees can not be terminated for refusing to work more than 72 hours in a workweek.

If you prepare agricultural products for market you can work over 72 hours a week, if you want to, but you cannot be required to.

Every employee is entitled to one day of rest in 7. So, an employer cannot require you to work more than six days out of seven.

But if the nature of the work reasonably requires that the you work seven or more consecutive days, you have to get the equivalent time off in a calendar month to make up for the days you did not get off in the those seven days. So, if you work for 15 days in a row, you have to get two days off in that calendar month in addition to not being required to work consecutively for more than 6 days.