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Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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Employment Issue: Worked at an International Company for

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Employment Issue:

Worked at an International Company for 19 years, hold a manager position, my status has been Nonexempt. I work 40 hours and get 8 hours of overtime each week.

Two years ago I joined the Army Reserves, ever since I joined the Army Reserves I have had many issues with my boss, as he is harassing me because I have made his workload more difficult. (this is a “can of worms” in itself, but I have a more pressing issue)

The issue at hand is that I am coming off a 60-day training leave with the Army and I went into work to pick up my upcoming work schedule. I discovered they have transferred me to another department and that I am no longer “Nonexempt” and that I will no longer be getting the extra 8 hours overtime. I understand that the Military Clause does not allow them to change my status…is that true? Can this company do this to me?
Hello and welcome to JustAnswer.

Yes, you are protected from discrimination due to your military status.

However, if you are correctly classified as an 'exempt' employee, it wouldn't constitute discrimination due to your military status.

Your employer is likely claiming a managerial exemption. Could you tell me what you receive monthly in salary and how many employees do you supervise?
Customer: replied 4 years ago.
$70,000, 15-20 employees
Unfortunately, you do qualify as an exempt employee under the managerial exemption, so you wouldn't be able to claim discrimination for being misclassified as an exempt employee.
Customer: replied 4 years ago.
Thanks for your help!

If I were to manage 70-100 in this new position, would it make a difference from the previous 15-20 employees?

In my understanding, if the "status" changes while I'm in the military, that is not legal. So, by changing from non-exempt to exempt...isn't tat a "status change"?

Can you give me a laymans description of exempt and non-exempt?

Thank you very much!

No, that wouldn't make a difference.

No, as long as the status change is correct, for instance, it seems that you're getting a promotion to managing more employees, then that wouldn't constitute discrimination.

Exempt employees are exempt from overtime regulations and other labor law provisions that protect hourly employees, including meal and rest breaks.

While non-exempt employees are entitled to overtime, and lunch and meal breaks in accord with California law.

These are criteria for the executive exemption:

  • Receives at least two times the state's minimum wage as a salary for full-time employment. This is known as the "minimum salary level test."
  • The primary function of the job is management of the enterprise, or of a customarily recognized department or subdivision.
  • The job regularly directs the work of two or more subordinate employees.
  • Has the authority to hire, fire and give pay treatment, or recommend those things.
  • Handles employee complaints and discipline.
  • Devotes less than 50% of work time to activities other than managerial duties.
  • Regularly and customarily exercises discretionary power.
  • OR, owns at least a bona fide 20 percent equity interest in the enterprise and is actively engaged in its management. (29 CFR 541.114)
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