Overtime Exemptions

We hear it all the time. “Should I be Getting Overtime Pay?”

Though this sounds simple it can be a LITTLE TRICKY to figure out, but I will attempt to explain who gets overtime pay in California as simply as possible. To be sure about your individual case it is best to call our office.

In basic terms, every employee is entitled to overtime pay in the State of California, unless deemed otherwise exempt.

To help you decipher whether or not you should be getting overtime, we have outlined the basic exemptions here.

This can be a little “dry” and legalese, but I want to give you a basic understanding of the exemptions. WE ARE HERE FOR YOU. This is just an outline of the laws that may affect you.

So here it is….

There are several key points of understanding when it comes to determining whether you are exempt, or not entitled to overtime pay under the overtime pay laws.

First, the burden is on your Employer to prove you are exempt. The governing case on this issue can be found at Nordquist v. McGraw-Hill Broadcasting Company (1995) 32 Cal.App.4th 555, 562.

Second, the actual job duties you perform, and NOT your job title or job description, determine if you are exempt or non-exempt.

Third, exemptions under the California Labor Code (state law) and exemptions under the Fair Labor Standards Act (federal law) may vary.

The CAPerson under crumpled pile of papers with hand holding a help si Administrative Exemption: In order to satisfy the administrative exemption, an Employee must perform office or non-manual work that is directly related to the management policies or general business operations of the Employer or the Employer’s customers. Employers sometimes err in applying the administrative exemption to situations in which Employees exercise independence and discretion in their positions (for example, insurance underwriters or brokers), but are not performing “administrative” work relating to the Employer’s policies or operations. Rather, such Employees fulfill a “production” function in the organization because the duties directly relate to the generation of revenue.
The CA Executive Exemption: Employers most commonly assert the “Executive Exemption” as their legal defense in overtime cases. For an employee to qualify as exempt under the “executive exemption,” the employer must prove ALL of the following about the employee:

-The employee’s duties involve actual management of an enterprise or recognized department of a business.
-The employee spends over half of his or her weekly work time engaged in actual exempt work. What constitutes “exempt” and “non-exempt” executive work is discussed in the “What You Should Know” section below.Execturive overtime exemption
-The employee directs the work of two or more other employees (or the equivalent of 80 hours a week of subordinate time).
-The employee can hire, fire or promote, or make recommendations (which are actually given weight by the employer) on such decisions.
-The employee customarily and regularly exercises discretion and independent judgment on the job.
-The employee must be full-time and salaried. The monthly salary must be twice California’s minimum wage for full-time employment, which currently is $9.00 per hour as of July 1, 2014.

If the employer cannot prove all of the above elements, the employee is “non-exempt” under the executive exemption and should be paid overtime.

The CA Professional Exemption: The professional exemption generally applies to two types of Employees. The first type is comprised of individuals who maintain licenses by the State of California and are primarily engaged in the practice of law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting. (Note that pharmacists and most nurses are expressly excluded from this exemption, and therefore may be entitled to overtime compensation if they do not fall under another exemption.)

Preoffessional Overtime ExemptionEmployers sometimes make the mistake of classifying as exempt those employees who have not yet received their licenses. In addition, with the exception of certain high-level “computer” professionals, employees that are paid hourly, rather than a salary, are misclassified as exempt under the professional exemption, even if they satisfy the duties test.

The second type of employees that may be covered under this exemption, are those engaged in a “learned or artistic profession.” The California Division of Labor Standards Enforcement (DLSE) recently adopted as its enforcement position, prior federal standards regarding this exemption. The DLSE’s enforcement position is now consistent with the Federal Department of Labor’s regulations as they existed before they were revised (and made more liberal) in 2004.

Specifically, the DLSE made clear that the “learned” professional exemption now requires learning only above the high school level. Employees no longer are required to have post-bachelor’s degrees from college. However, the degree must be in the field of science or learning, and it must be required by the Employee’s position in the company.

The CA Outside Salesperson Exemption: You probably know if you fall under this exemption, but just to clarify, if you spend the majority of your time outside the business and make sales whether or not you are paid by commission, this may be you. This is one exemption that does not carry the wage requirement. If you are paid commission and don’t make your goals that would put you over the double minimum wage requirement, you may still be considered exempt from overtime. In addition, some delivery drivers who also sell the product may fall under this exemption. Our employment attorneys can help you sort this out so you know for sure.

CA Computer Professionals Exemption: Computer pros have their own specific guidcomputer proffessional overtime exemptionelines.
In simple terms, if you spend more than half of your time on design and analysis you may fall under the Administrative Exemption outlined above, however if you spend over half your time writing code you may be owed overtime.  IT and hardware or help-desk employees are also, usually non-exempt and should get overtime pay. In addition, there are very specific wage requirements. Compare your wages to the graph provided and see if your company measures up.   If you are not receiving this pay, YOU COULD BE OWED OVERTIME PAY!

These are state required minimums

YEAR Hourly
Annual Salary Eq.
2014 $40.38 $84,130.53
2013 $39.90 $83,132.93
2012 $38.89 $81,026.25
2011 $37.94 $79,050

Remember, these are just basic guidelines. Call our office and we will help you understand the intricacies and determine if you qualify for overtime pay.

CA Caregiver Exemption: Do you work in a care facility? Caregivers who do not work in-home are usually non-exempt and get overtime pay. This does not apply to nurses. If you spend more than 20% of your time on duties like cleaning or driving, you may still be entitled to overtime.

If you are uncertain if you have been classified correctly, or you require more information to determine if you may be entitled to back overtime pay, contact us at United Employees Law Group to discuss your potential claim.


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**CA Overtime is Over 8 Hours worked in a DAY, Federal overtime is over 40 hours in a week.

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