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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1843
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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Hi Brandon, i have a question regarding the overtime laws.

Customer Question

Hi Brandon,
i have a question regarding the overtime laws. would it be possible to have a waver of overtime pay signed by an employee so he does not challenge us later? is there such a thing as a waiver of overtime pay?
Thank you,
Anoosheh
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 1 year ago.

Employment-LawExpert :

Hi Annosheh, unfortunately no, you cannot have a person sign a waiver of overtime pay. This would not be legal. However, you could make a person an exempt employee.

Employment-LawExpert :

If they are an exempt employee then you would not have to pay them overtime.

Employment-LawExpert :

More about the law concerning paying an employee overtime can be found here:

Employment-LawExpert :

http://www.dir.ca.gov/dlse/faq_overtime.htm

Employment-LawExpert :

In order to actually be exempt, however, they need to fall under one of the exempt categories. More about this can be found here:

Employment-LawExpert :

http://www.dir.ca.gov/dlse/FAQ_OvertimeExemptions.htm

Employment-LawExpert :

In the contract, you could have a special provision stating something like "Employee understands that at all times they is employed as a salaried/exempt employee and, therefore, he/she is not entitled to overtime wages. Employee shall not receive overtime compensation for the services performed under this Agreement, unless specifically agreed to in writing."

Employment-LawExpert :

But in order to have that be enforceable, they need to fall under one of the categories I mentioned above.

Employment-LawExpert :

If they fall under one of the categories, however, and you treat them as an exempt salaried employee, then you would be able to do this.

Employment-LawExpert :

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.

Employment-LawExpert :

Have a wonderful rest of your day.

Expert:  Brandon, Esq. replied 1 year ago.
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Customer: replied 1 year ago.

Thank you for your response. We do not have any contracts with our employees. we have a paleontologist on our staff who works for us as an Specialty environmental monitor as an hourly employee. We categorize them as professional employees who are exempt under the CA labor law in our employee handbook but it seems that it is such a gray area that they can actually challenge us later for one and half overtime pay. What other precautions can we take to protect ourselves from such employees?

Expert:  Brandon, Esq. replied 1 year ago.
Unfortunately, these types of laws do give employees a lot of rights in challenging their exempt status. Thus, the two best things you can do in order to protect yourself against such claims, is to 1) give them an employment contract detailing their duties and exempt status, and 2) make sure not to treat the employee as a non-exempt employee. For example, with the paleontologist, you could claim that this person is employed in a professional capacity. Thus, the employment contract could specifically reference the persons need to customarily and regularly exercise discretion and independent judgment in the performance of their duties. Additionally, whatever salary you pay them, you need to make sure that they earn at least a monthly salary equivalent to no less than two times the minimum wage. Furthermore, if the person ever needs to leave early from work, you cannot dock them. Doing so would place them back into non-exempt status and they would thus have a claim against you.
Brandon, Esq., Lawyer
Satisfied Customers: 1843
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

thank you very much.

Expert:  Brandon, Esq. replied 1 year ago.
Thank you very much for the positive rating. If you ever need to ask for me again, please feel free to do so here:

http://www.justanswer.com/law/expert-accident-expert/

Have a wonderful rest of your day.

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Brandon, Esq.
Brandon, Esq.
California Employment Lawyer
1843 Satisfied Customers
Has received a certificate of recognition from the California State Senate for his outstanding legal service.