WAGE THEFT
(415) 342-4125
In an effort to avoid having to pay overtime wages, employers often misclassify nonexempt, hourly employees as exempt employees. Misclassification cases commonly involve low level managers, supervisors, or administrative employees, and occur in various industries, including the retail and restaurant industries. Just because an employer classifies an employee as exempt or pays an employee a salary does not make the employee exempt from overtime laws. In other words, employers do not have the final say on whether an employee is an exempt employee.
Generally, employees employed in professional, executive, or administrative capacities are exempt from overtime wage requirements. To fall under these so-called “white collar” exemptions, an employee must:
be primarily engaged in exempt duties,
regularly exercise discretion and independent judgment in performing exempt duties, and
earn a monthly salary equivalent to not less than twice the state minimum wage for full-time work (meaning 40 hours per week). The state minimum wage for 2025 is $16.50 per hour.
Executive Exemption - The executive exemption applies to an employee whose duties involve management of an enterprise or recognized department or sub-division, who customarily and regularly directs the work of two or more employees, who has authority to fire and hire employees or to make recommendations in those areas which are given particular weight, and who spends more than one-half of his or her time engaged in exempt duties.
Administration Exemption - The administrative exemption applies to an employee whose primary duties involve the performance of office or non-manual work directly related to management policies or general business operations of the employer or the employer’s customers, and who regularly and directly assists a proprietor or employee who himself or herself falls under the executive or administrative exemption, who performs work under general supervision requiring special training, experience, or knowledge, or who executes special assignments or tasks under general supervision.
Professional Exemption - The professional exemption applies to an employee who is licensed or certified by the State of California and primarily engaged in recognized professions, including medicine, dentistry, optometry, law, architecture, engineering, teaching, and accounting, or is primarily engaged in an occupation commonly recognized as an artistic or learned profession. Generally, registered nurses and pharmacists are nonexempt employees, unless they meet the criteria for the executive or administrative exemptions.
The term “primarily engaged” means an employee devotes more than half of the employee’s work time to exempt duties. An employee’s duties are either exempt or nonexempt duties, and are determined by the objective purpose of the duty. For example, one court held that an assistant grocery store manager who spent more than half of her time checking out customers and bagging groceries was engaged in nonexempt duties and thus entitled to overtime pay, even though she concurrently watched over her subordinate employees.
Misclassification of a nonexempt, hourly employee as an exempt employee, in effect, results in wage theft, as it deprives an employee of overtime pay to the employee’s detriment and to the employer’s benefit.
If you believe that your rights in the workplace have been violated, give Mr. Velez a call or send an email. You may reach him at (415) 342-4125 and at martinvelez@comcast.net.
Mr. Velez represents employees throughout the San Francisco Bay Area, including Alameda County (Fremont, Hayward, Oakland, and Pleasanton), Contra Costa County (Antioch, Martinez, Richmond, and Walnut Creek), Marin County (San Rafael and Novato), Napa County (American Canyon and Napa), City and County of San Francisco, San Mateo County (Daly City, Menlo Park, and Redwood City), Santa Clara County (Mountain View, Palo Alto, and San Jose), Solano County (Fairfield and Vallejo), and Sonoma County (Petaluma and Santa Rosa).