What if my employer, or former employer, has told me that I am “exempt” from the overtime laws?

Some employees are “exempt” from the right to receive overtime compensation. However, just because your employer, or former employer, may have told you that you are “exempt” does not make it so. In order to be “exempt” from the right to receive overtime compensation, an employee must be “exempt” under both California law, and federal law (with a few rare exceptions). Some employers do not understand the overtime law. There have even been cases of employers telling their employees that they are “exempt”, even when the employers knew otherwise.
 

 

What if I am a “management” employee?

In California, even "management" employees, even with job titles like "operating manager," "general manager," "store manager," "supervisor" or "assistant manager," can be entitled to overtime compensation. The determination whether a "management" employee is entitled to overtime compensation is complex, and must be made on a case-by-case basis. One of the most important factors is the nature of the tasks primarily performed by the "management" employee.

 

 

What if I am paid a salary (i.e., not paid by the hour)?

In California, even many salaried employees are entitled to overtime compensation. (For purposes of calculating what would be time-and-one-half, and what would be double-time, the employee’s weekly salary is divided by 40; this results in an imputed “hourly rate” of compensation.) The question whether a salaried employee is entitled to overtime compensation is complex, and must be made on a case-by-case basis.
 



What if I am an hourly employee whose employer has made it clear that I am expected to “finish my work” after I “punch out” (i.e., while “off the clock”)?

An employer may not require – or even permit – an hourly employee to work “off the clock”. There have been cases in which employers have made it clear that employees are expected to punch out before they have finished working (perhaps to avoid paying overtime). An example could be a manager who can see that an employee is still working, but asks: “You’re not still on the clock, are you?” In California, an employee is entitled to be paid for all hours that the employee was required to work, or even permitted to work.
 



What is time shaving?

There have been cases in which employers have altered employees’ time cards, either physically or electronically, so as to inaccurately under-state the number of hours worked (perhaps to avoid paying overtime). This unlawful practice is sometimes referred to as “time shaving”. Employees might not know that time shaving has occurred unless they keep careful records of their own time. In California, it is the duty of the employer to keep accurate time records showing when each employee begins and ends each work period; and it is a criminal offense for an employer to fail to keep such accurate time records.



What If My Employer Claims I'm An Independent Contractor? 


In an effort to cut business costs, more and more California businesses have turned to a contractor model. They hire workers and label them "independent contractors" to help increase flexibility and decrease business overhead. This is an acceptable business practice when employers follow the law. However, when employers call workers "independent contractors" just to avoid paying them the benefits and providing the legal protections to which those workers are entitled, those employers break the law. They should be held accountable.

At the Law Offices of David J. Gallo, in Del Mar, California, attorney David Gallo puts more than two decades of experience to work for employees who have wrongly been classified as "independent contractors." If you have been wrongly classified, he may be able to take action on your behalf.

The best way to know for sure whether your employer's actions were illegal is to talk with an attorney at the firm. However, there are some telltale signs. Here are some signs that you have been wrongly classified as an independent contractor:


  • Your work is done under the employer's control, using the employer's facility and equipment
  • The employer dictates exactly how you do your job
  • You work alongside full employees of the company, and there is little or no difference between your roles
  • Your employer holds you out to others as an employee of the company
  • You are required to wear a company uniform
  • The company provides you with business cards, a company email address and a company vehicle


If you are unsure whether the employer has broken the law, contact a lawyer for a confidential consultation. A member of the legal team at the Law Offices of David J. Gallo can talk with you about your situation and determine the best course of action.




Can the employee recover unpaid wages and/or overtime?

Where an employer has failed to pay an employee for all hours worked, including any and all overtime compensation prescribed by law, the employee can recover: (a) back pay equal to the unpaid wages, including overtime; (b) plus interest; (c) plus additional monetary penalties equal to thirty (30) days’ pay; (d) plus attorneys’ fees as awarded by the court.

 

What will happen if I submit information through this site?

All information submitted through this site will be maintained as confidential. Information submitted through this site will be reviewed by a California-licensed attorney, David J. Gallo, Esq., who is the sole shareholder of The California Labor Counsel, P.C. The California Labor Counsel, P.C., will contact you within about one week.

Frequently Asked Questions