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Joseph
Joseph, Lawyer
Category: California Employment Law
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Experience:  Extensive experience representing employees and management
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I own a business in the automotive service industry. I have

Customer Question

I own a business in the automotive service industry. I have one employee who holds a special license to conduct the services we provide, and thus handles the daily operations of the business. I have her listed as a exempt employee as I consider her a vital asset to the business. If I did not have her, I would not be able to make money. Is it legal for me to have her listed as an exempt employee? What if I get my license, and she is not longer a vital for the business to function, but is the senior technician although I am the owner?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello,

I'm sorry to hear about your situation and hope I can help.

My name isXXXXX am a licensed attorney, and my goal is to provide you with excellent service today.

I need a bit more information from you before I can proceed to provide you with a complete and thorough answer to your question.

How much of the employee's time is spent managing the day to day functions of the business?

Also, how much is the employee paid on a salaried basis?

Customer: replied 1 year ago.

The employee actually conducts the vehicle inspections for the smog check. She handles and completes the tests, customers, and transactions. I do mostly back-end things like accounting, taxes, marketing and will pitch in to help handle customers when busy. She is paid $39,600.

Expert:  Joseph replied 1 year ago.
Hello Kyle,

Unfortunately, even though she is considered a vital asset to your company, her job does not qualify her as an exempt employee, since she is not considered an exempt employee under California law.

In order to qualify as an exempt employee, she would need to fit into one of the following exemptions: Executive, Administrative, of Professional.

The only one she could possibly fit into would be Administrative, but since she is the technician and you actually manage the business, she is not eligible for that classification.

Unfortunately, she is an exempt employee, and you have to pay her as such (including overtime), as well as providing her with mandatory meal and rest breaks under California law.

See the definition of an Administrative Employee here:

http://www.dir.ca.gov/dlse/Glossary.asp?Button1=A



I realize the above information is not what you wanted to hear and I sincerely XXXXX XXXXX had better news to give you, but I hope you appreciate an honest and direct answer to your question. It would be unprofessional of me and unfair to you to provide you with anything less.

Please let me know if you have any follow up or clarifying questions as I want to ensure that you are completely satisfied with my service. Please contact me first if you are contemplating leaving me a negative rating, as I’ll be happy to continue to address your concerns until you are completely satisfied with my service.

If not, please remember to rate my answer positively so I get credit for my work.

Thanks and best of luck!

-Joseph
Joseph, Lawyer
Satisfied Customers: 5272
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Can you clarify this line of the administrative regulation:


 


"Who performs, under only general supervision, work along specialized or technical lines requiring special training, experience, or knowledge, or"


 


Operationally, the business requires a level 2 inspector and is needed to be open and make independent decisions based on her specialized training and special license to make those decisions. Since I do not have this license and cannot make any judgement calls on inspections wouldn't this qualify her as the only authority on making these administrative/management decisions?

Expert:  Joseph replied 1 year ago.
Helly Kyle,

That provision is only related and applicable to section b of the definition, not the first. Since your employee isn't involved in administration of a school system it doesn't apply.

The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and

Who customarily and regularly exercised discretion and independent judgment; and

Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity, or
Who performs, under only general supervision, work along specialized or technical lines requiring special training, experience, or knowledge, or
Who executes, under only general supervision, special assignments and tasks, and
Who is primarily engaged in duties which meet the test for the exemption.
An administrative employee must also earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment means 40 hours per week as defined in Labor Code Section 515(c).
Customer: replied 1 year ago.

Thank you.

Expert:  Joseph replied 1 year ago.
Thank you; happy to help and best of luck!

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