California Overtime Law: The Gathering Storm Over Employee Classification and Overtime Pay

The next time you walk into your local coffee shop, take a look at the people behind the counter. Chances are you will see baristas, cashiers and other counter people helping you get your scone or cinnamon roll. What you don’t notice may take the foam right off your latte. While the baristas, cashiers and counter folks are fairly earning their hourly rate, with overtime if applicable, there are workers behind that counter who are doing much the same type of work who are NOT paid overtime.

These folks may make the coffee, serve the pastries, clean the tables and work the cash register for more than 8 hours a day, but because they are classified as managers or assistant managers, they will not get overtime pay for it. Why? It’s all in the classification or misclassification of the worker.

It turns out that under California law, managers, professionals, administrative workers and computer professionals are “exempt” from the requirement that employers pay overtime (or 1.5 times the employee’s regular rate of pay) for overtime hours worked (that is, hours worked in excess of 8 hours in any workday and all hours in excess of 40 per week).

By classifying an employee as a manager or assistant manager, an employer can arrange for that employee to work more than 8 hours per day or 40 hours per week, and not pay them overtime. That seems unfair--it’s also illegal if the employee, as a practical matter, performs the same work on a daily basis as a non-exempt worker for more than 50% of the time.

If you feel you’ve in a similar situation and have been misbranded, misused and misclassified, you should consult with an employment attorney to find out if you are entitled to recover overtime pay. A simple initial consultation would be very informative, and if you want to go further, you can discuss all of your options.

There are a few options. A simple lawyer’s letter may set things straight. If not, you can file a lawsuit (on contingency fee, of course), either on your own, or as a class action. You can even join a class action if there is already one in place (your attorney can figure that one out for you). You could even fly solo with a lawyer on stand-by as your legal coach. So if you’re fed up, get up to speed on your rights.