Overtime: managerial exemption
Are you working 50, 60, or maybe even 70 or 80 hours each week? Has your employer told you that your job is very important, so you are expected to work long hours without any compensation for overtime? This happens more than you think. I’ve handled hundreds of cases over the years where my clients’ employers told them just that. However, what your boss won’t tell you is that most employees in the state of California are supposed to be receiving overtime pay for their hard work.
This is true even if you are paid on a salary basis, and even if you earn a salary that is over $100,000 per year.
There is a very limited number of people who are not entitled to overtime. You likely have rights to wages that you didn’t even know you had!
Does your employer tell you that you’re a manager, so you don’t qualify for overtime? He’s likely wrong!
Executives are not entitled to overtime pay under California law. However, many managers have rights to overtime. That’s because many people are managers in an organization. The title of “manager” is common because it’s the way corporations are structured. Having the word “manager,” “lead,” or “director” in your title doesn't mean that you have to work long overtime hours without pay.
The title of “manager” doesn't mean that you have to work long overtime hours without pay.
In order to considered an “executive,” you must be able to direct the work of at least 2 subordinates in your department, your boss must have given you the ability to hire or fire these subordinates, and you must spend more than 50% of your time directing the work of those subordinates. That last part is very uncommon in small companies.
If you only supervise a few people, it’s going to be very difficult for your employer to prove you shouldn’t be getting overtime. It’s almost impossible for your company to show that you’re supervising a few people and spending more than half the day looking over those people’s shoulders. That is the reason that in the case of Heyen v. Safeway, the appellate court ruled that store managers can’t be exempt from overtime laws because their primary duties are doing the exact same tasks as their subordinates.
If you only supervise a few people, it’s going to be very difficult for your employer to prove you shouldn’t be getting overtime.
If you are covering the floor or handling orders because your employer has refused to hire enough employees, you have a right to overtime! This is true even if you are "managing" while you are performing this work. That is, you can still be able to direct other employees, answer employee questions, and generally observe the operations and still be entitled to overtime.
What should you do if you think you have rights to overtime pay?
If you think you are entitled to overtime you need to begin keeping a log of the hours that you work. Got a late night phone call from the boss or a client? Keep a journal of when the conversation started and ended, with whom you spoke, and the nature of the call.
If you haven’t been keeping a record, the law says that you can provide a reasonable estimate of your hours worked. But, how do you prove that your estimate is reasonable? Go back through your past emails and look at the time and date stamp on the emails. Look at your expense report sheets and see where you traveled to and what you were doing.
You can direct other employees, answer employee questions, and still be entitled to overtime.
If you have access to your computer log in times, check to see when your computer was in use. Finally, look at your phone records. All of those late night phone calls should be recorded.
Your memory is probably better than your employer’s recollection, since you actually worked the hours! Reach out to us if you’d like help in figuring out how to estimate the time you worked.
So, am I an exempt employee or not? Do I fit into the managerial exemption?
If you ask your boss, it’s very likely that you’ll be told you’re exempt. But my many years of experience have shown me that most people are non-exempt. Exemptions are a hard thing to understand, which is why many workplaces get them wrong. Let us help you find out if you’re owed money!
We can help you fight for justice.
When your employer wrongfully withholds pay that your earned, you can feel hopeless. Employers should not get away with it! By standing up for your rights, you are standing up for yourself. You are also standing up for everyone who has ever suffered the injustice of an employer keeping wages that are earned.
Please make an appointment for a free consultation in our Newport Beach office. You can contact us by email or phone. We want to help.