Overtime: professional exemption
Are you working late into the night and every weekend? Has your employer told you that no one in your profession gets paid overtime? Employers act wrongfully more often than you would think. I’ve handled hundreds of cases over the years where my clients’ employers told them 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, even if you have a “professional” job.
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 professional, so you don’t qualify for overtime? He’s likely wrong!
You may consider yourself a professional. You come to work every day. You work long hours. You treat everyone you encounter with respect. Does that mean you don’t get overtime pay? No.
An engineer working as a technician has a right to overtime. So does a CPA whose job is really bookkeeping.
In Campbell v. PricewaterhouseCoopers, a federal court held that professionals who don’t qualify for overtime are employees who perform work that involves the application of advanced, specialized learning. This learning is of the type commonly associated with the "traditional learned professions." In this context, teaching, medicine, law, accounting, or engineering are common professions that may not qualify for overtime.
Typically, a professional will hold a specialized academic degree in the field. However, that’s not enough by itself! You may still have rights to overtime wages.
A professional must be able to exercise discretion and independent judgement. So, a machine calibrator may be highly trained, but there isn’t a lot of discretion in how the job is performed. That means machine calibrators still have a right to overtime pay. An engineer working as a technician has a right to overtime pay. A CPA whose job is really bookkeeping is entitled to overtime pay.
If you spend more than 50% of your time writing code, you will likely be entitled to overtime.
Also, sometimes professionals don’t end up spending most of their time doing professional work. If you’re an accountant who spends all of her time answering phones, filing, making copies, and mailing things, you deserve overtime pay because your work doesn’t involve the application of your specialized learning.
Typically, unless you’re a doctor, a lawyer, a teacher, or an engineer, you should be receiving overtime pay. If you aren’t, call us. We can help!
Does your workplace refuse to pay you overtime because you’re a computer professional? That may be unfair!
Computer professionals are often entitled to overtime pay. If you spend more than 50% of your time on analysis and design of software, you might not get overtime. However, if you spend more than 50% of your time writing code, you will likely be entitled to overtime.
California law states that a computer professional earning less than $75,000 per year has a right to overtime pay. That’s true regardless of what you do in the computer industry.
Also, the law that limits overtime pay applies only to people in the "software field." This means that a network administrator may not get paid overtime. But if you are engaged in the manufacture, repair, or maintenance of computer hardware and related equipment, you are entitled to overtime pay.
If you spend the majority of you time installing, maintaining, or configuring computer hardware such as routers, switches, servers, desktops, laptops, or handheld devices, you have rights to overtime pay, even if your salary is in excess of $75,000 per year.
What should you do 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.
You need to begin keeping a log of the hours that you work.
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. 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 professional 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 you 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 earned wages.
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.