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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6697
Experience:  Significant experience in all areas of employment law.
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I work as a project foreman for fire alarm company. I am paid

Resolved Question:

I work as a project foreman for fire alarm company. I am paid a salary and do not get overtime. I am in the field performing 90% manual labor and directing other workers. I perform 10% paperwork, email. I normally work 50+ hours a week. Am I a exempt employee, or nonexempt employee?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to answer your question. Has your employer told you what overtime exemption they believe disqualifies you from overtime? Have you asked? This would be a useful starting point, though should not be necessary to address your concerns.

I very much look forward to assisting you regarding this matter.
Customer: replied 1 year ago.

I have not asked for overtime, I have not asked for what would qualify me as a exempt employee. I have been working a 8 hour day shift then a 4 hour night shift and becoming tired of being away from my family. I wanted to have something to bring up when a year has passed. I want to be able to ask for a bonus or ask for overtime time going forward. I want to know what my rights are regarding being a salary worker. In the end I want a bargaining chip to ask to be compensated for working crazy hours or ask to be placed on hourly pay. My salary is 80k a year. Recently I worked 8 hours, then had 4 hours off then worked from 7pm to 7am. I am not looking to file a wage claim or sue anyone I just want to know what rights I have and what is legal.

Expert:  Patrick, Esq. replied 1 year ago.
Bryce,

Thanks for your reply.

Generally speaking, an employee in the state of California is entitled to overtime for any hours they work in excess of 8 per day or 40 per week unless they fall within one of the specifically enumerated exemptions from overtime.

The two exemptions most likely to apply to an individual in your circumstance are the administrative exemption and the managerial exemption (often referred to as the executive exemption).

In order to be exempt from overtime pursuant to the administrative exemption, the following criteria must be satisfied:

- You must be compensated on a salary or fee basis at a rate not less than $640 per week;
- Your primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
- Your primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

California law provides that in order to be exempt pursuant to the managerial exemption from overtime, an employee must spend more than 50 percent of his or her time performing the following duties.

- Customarily and regularly directing the work of at least 2 or more employees
- Customarily and regularly exercising discretionary power
- The authority to hire and fire employee
- The ability to make comments and suggestions about personnel matters that are given weight by the employer.

Again, the employee must make a salary of at least $640 per week to be eligible for the exemption.

Depending on the extent to which you direct other workers, you may fall within this managerial exemption (the administrative exemption is a possibility too, which is why I mentioned it). However, the burden of proving an employee is exempt from overtime is one that falls on the employer, not the employee--the general presumption is that all employees are eligible for overtime.

Conceivably, an employee in your circumstance would file a wage claim with the Department of Labor Standards Enforcement for back overtime, assuming that you were improperly exempted. To file a wage claim with the DLSE, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

Your employer would be legally prohibited from retaliated against you for making such a claim, or for that matter, for inquiring about your exempt status.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Very best wishes to you.
Customer: replied 1 year ago.

This answers my question. I am a nonexempt employee. I should be receiving overtime for the work I do. I now have the information I need if my employer becomes uppity about when I decide to work overtime or not. I enjoying being useful and being able to provide a hard's day work for the pay I receive. But I now have a card up my sleeve to play when I choose to do so. I realize that the information you have provided is no substitute for obtaining a lawyer to represent me if I choose to file a claim or pursue action. I appreciate your time and links.

Expert:  Patrick, Esq. replied 1 year ago.
Thank you very much for you reply. I am so glad that you found this information helpful. Please let me know of you have any further concerns you would like me to address. If not, I would be most grateful of you would provide a positive rating of my service, as this is the only way I receive credit for my answer. Have a very pleasant evening.
Patrick, Esq., Lawyer
Satisfied Customers: 6697
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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