Vincent W Davis

Overtime for Salaried Employees?

What the law say about Overtime for Salaried Employees

Many Employers will attempt to move hourly workers into Assistant Managers Positions

If an employer can get 50 hours of work out of an employee for essentially the same cost as what 40 hours would add up to by assigning them a title and paying them a fixed salary, then that employer might be taking advantage of the worker. Many employees with job titles such as “shift manager” or “assistant manager” are convinced that they are not eligible to receive overtime as they are a salaried employee tasked with supervising others. Here is a story where you will learn that this happens ALL THE TIME in business big and small:

Borders Books Pay $2.2 Million Overtime to 600 Former Managers
Job Title vs. Job Responsibilities

Borders Books Pay $2.2 Million Overtime to 600 Former ManagersA class-action lawsuit was files by two former assistant managers of Borders stores here in California, charging that the retailer should have paid them overtime. There is a tentative settlement. Borders has agreed to pay $2.2 million to approximately 600 former assistant managers who worked in California Borders stores from April 10, 1996, to March 18, 2001.

Under the proposed overtime settlement, Borders agreed to pay the disputed overtime. By settling, Borders will avoid the cost and publicity of a trial.

In the complaint, that was first filed in 1996, the former assistant managers asserted that since they spent more than 50% of their time working at tasks they considered not managerial, they were entitled to overtime. Borders contended that because their job title was assistant manager, they were exempt from overtime, no matter what duties they performed. The assistant manager position was eliminated in 2001, during a reorganization of job titles throughout the company’s stores.

There is a theme seen all across the country. If large, national chains can screw up in wages and overtime pay – big employers who have legal staffs – how possible is it that smaller, local and regional employers are making the exact same errors in classifying their employees?

Salaried Employees Can Be Entitled To Overtime

Are salaried employees entitled to overtime?

Few employees or employers really know! This is because of a misunderstanding of wage and hour laws; specifically the Fair Labor Standards Act (FLSA).

How your employer classifies you NOT relevant!

Simply because your employer has classified you as salaried does not mean you are not entitled to overtime.   The core issue is whether your job duties entitle you to overtime under the FLSA.

Everyone is entitled to overtime except those who are exempt.

The FLSA starts like a high school teacher who say the first day: “Class, everyone here has an “A” to start and it is your grade to loose…” Likewise, the FLSA starts from the assumption that every employee who works more than 40 hours in a workweek is entitled to overtime.  The law then sets forth several specific exemptions.  If your job duties —not job title— fall within one of those specific exemptions, you are probably not entitled to overtime. Some exemptions include administrative employees, executives, professionals, outside salespersons, computer professionals (earning above a certain amount), movie theater employees and employees delivering newspapers.  These are but a few of the exemptions. If you are unclear, call one of our experienced Wage and Hour Attorneys at Vincent W. Davis & Associates for a appraisal of your unique workplace situation.

Even if your job duties exempt you from overtime, you still may be OWED overtime.

Even if you are otherwise exempt, your employer can lose the benefit of the exemption by failing to pay you a “Real Salary.”  For example, should you show up late to work or miss a couple of hours here and there and then your employer deducts from your salary that week, the exemption may be lost.  How come? A “real salary” is culturally and legally understood to mean that you are entitled to the same amount of pay each week regardless of how much you work.

Therefore, if your employer wants to pay you the same when you put in 60 hours of work as for a mere 40, then he must also pay you the same for 30 hours.  Of course, there are always exceptions, but if this is your situation you should contact a Wage and Hour Lawyer to make sure.  Obviously, an employer need not pay you for any week in which you perform no work, and your employer may make deductions from your pay when you are absent from work for one or more full days for personal reasons.

Outside Salespersons.

Outside salespersons need not be paid a salary to be exempt.

Contact a California Labor Law Attorney

According to USA Today, American workers are suing their employers for their unpaid overtime pay: hourly or salaried. If you are owed back overtime, we can help.

“Now, many are striking back in court. Since the height of the recession in 2008, more workers across the nation have been suing employers under federal and state wage-and-hour laws. The number of lawsuits filed last year was up 32% vs. 2008, an increase that some experts partly attribute to a post-downturn austerity that pervaded the American workplace and artificially inflated U.S. productivity.” —USA Today

If you find yourself with wage or overtime disputes in California, contact an employment attorney at Vincent W. Davis & Associates to set up a no-cost, no-obligation consultation for a thorough assessment of your unique situation. Most employment issues can be preliminarily discussed by phone, and then if it is necessary to visit us in person, we have several conveniently-located offices in and around the Southern California counties and cities including, but not limited to:

  • Los Angeles
  • Los Angeles County
  • Orange County
  • Riverside County
  • San Bernardino County
  • Santa Ana</li
  • Beverly Hills
  • Anaheim
  • Irvine
  • Long Beach
  • Pasadena
  • And more…

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150 N. Santa Anita Ave,
Suite 200
Arcadia, CA 91006
Phone: (626) 446-6442
Fax: (626)-446-6454

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9465 Wilshire Blvd.
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Beverly Hills, CA 90212
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555 West Fifth Street,
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Los Angeles, California, 90013
Phone: (213)-400-4132

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Irvine, California, 92614
Phone: (949)-203-3971
Fax: (949)-203-3972

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Riverside, California, 92505
Phone: (909)-996-5644

San Diego
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San Diego, California, 92101
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Ladera Ranch, California, 92694
Phone: (714) 721-3822