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TexLaw, Lawyer
Category: Employment Law
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Experience:  Contracts, Wrongful termination and discrimination
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My daughter is a salaried employee at a public relations firm.

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My daughter is a salaried employee at a public relations firm. Her boss requires that she send her an email before she leaves work to see if her boss needs anything else done for the day. The boss always has something for her to do and she is averaging 12-13 hours a day. She often works through lunch. She is not being paid overtime and she is getting totally burned out.. I told her the only thing she can do is quit but i was wondering if this is legal.

A exempt employees do not benefit from overtime and break laws in California. However, just because a person is salaried does not mean they are automatically exempt. There are several factors which must be considered when determining whether or not your daughter is actually an exempt employee:

Job Title Irrelevant

Job titles do not determine a California employee's exempt or nonexempt status. An employee with an impressive job title may not qualify as an exempt employee if his/her actual duties do not meet the requirements for one of the exemptions.

Labor Commissioner's Determination

To determine whether the California employee is primarily engaged in exempt work, the California's Labor Commissioner examines the work performed by the employee during the workweek.

Salary Considerations

Exempt employees in California generally must earn a minimum monthly salary of no less than two times the state minimum wage for full-time employment. Paying an employee a salary does not make them exempt, nor does it change any requirements for compliance with wage and hour laws.

Discretion and Independent Judgment

Most California employees who are classified as exempt customarily and regularly exercise discretion and independent judgment in their jobs. Discretion and independent judgment involve comparing and evaluating possible courses of action and making a decision after considering various possibilities.

Federal Salary Basis Rules

While California law has more rigorous standards than federal law, federal law still warrants some attention. For one thing, the Department of Labor Standards Enforcement (DLSE) has indicated that, although there are differences between the state and federal exemption standards, the federal regulations may serve as a guide where there is no conflict.

So, if after reading through this, you are sure that your daughter is an exempt employee, then you have your answer. If you believe that she is not an exempt employee, then she would have a claim for the overtime hours worked and for penalties against her employer by filing a claim with the Department of Industrial Relations.

Please let me know if you have further questions on this subject.

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