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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 33166
Experience:  JD, 17 years experience & recognized by ABA for excellence in employment law.
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We are a nonprofit organization. There is an employee who

Resolved Question:

We are a nonprofit organization. There is an employee who has worked here for 15 years without any written agreement. She is compensated at $24,000 a year - and the best I can determine is this is based on $23/hr x 20 hrs/week x 52 weeks. She is a "part time" employee though she has no set hours as we flex around her other obligations.

The issue is everyone knows she works more than 20 hours a week. it appears to me the organization is at risk for a claim on past hours worked?

I am ready to codify her status, hours, and pay which would give her a slioght raise. She is happy with this. What is the best course of action? just write an agreement and move forward?

Thaks so much,
Brian
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Tina replied 5 years ago.
Hello Brian and welcome,

The employee has been paid a salaried amount regardless of hours worked even though she should have been paid hourly under CA law?

Customer: replied 5 years ago.

Hi Tina,

 

Thanks for your help. To tell you the truth i am not sure if she must be paid hourly under CA law. If she is part time employee, must she be paid by the hour or can she just be paid a lump some every two weeks at an agreed amount for 20 hours a week??

 

If so, and she works more than 20 hours per week as a given - are we at risk?

What is the easist fix, as she is very friendly.

 

Thanks, Brian

Expert:  Tina replied 5 years ago.
It does not appear she should be exempt from overtime based on her salary, so she should normally be paid for all hours worked and not a flat salary under CA law.

Here is a link with more information:

http://www.management-advantage.com/products/overtime-exempt.html

Given this, the company would typically be subject to very substantial penalties if investigated by the state labor board as well as the payment of back wages owed.

The statute of limitations on such a claim is normally 3 years, so if you paid the back wages owed over the past 3 years and begin paying the employee hourly instead of salaried from this point forward, that would normally avert any such penalties.

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Customer: replied 5 years ago.

Tina,

 

Thank you. Just one more thing.

 

My understanding is to be a salaried employee in Calif. (meaning exempt - no overtime)

one condition is they must be paid at LEASt twice the minimum wage. or in CA $8 x 40hrs x 52 weeks = $33,000 or so.

 

So would another way to deal with this be to make her salaried at the above wage and not worry about number of hours?

 

Otherwise if I understand correctly, we need to codify the details of her compensation with the following details:

1) number of hours a week

2) $ per hour

3) job description

4) Is there any sick/vacation agreements?

 

Thanks again,

brian

Expert:  Tina replied 5 years ago.
Hello again,

Like you indicated, the salary amount is only one of the criteria for classifying the employee as exempt. If she meets the remaining conditions of one of the exempt categories, only then could you avoid paying her for all hours actually worked typically.

Yes, you would need to record her hours actually worked and make sure there is an established hourly rate for her. State law does not require a job description or vacation or sick time to be paid, but it is normally best if these terms are set out in writing so both parties have a clear understanding of their obligations.

All the best to you, Brian.


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