Employers do not decide who does not get overtime

Frank S. Clowney III

While San Diego employers may feel otherwise, they do not have the final say on who does not does not receive overtime compensation.

Under both California law and federal law, employees are entitled to appropriate overtime pay, which is higher than their usual wage, if they work more than 40 hours in a work week.

Like the federal government and other states, California employers may exempt certain employees from overtime and pay them a flat salary instead.

Likewise, businesses are free to use the services of independent contractors who get paid by the job and, thus, are not entitled to overtime.

California employers may not exempt employees from overtime by fiat

However, when taking these steps, employers must follow both federal rules and California’s rules. In this respect, California’s rules in many cases are more employee-friendly than the federal rules.

For example, an employer may not name an employee a manager and thus claim them as exempt from overtime just by paying a salary.

In order for an employer to get the benefit of this exemption, the employer must pay the employee a salary that is at least double California’s minimum wage.

The employee must also have actual managerial duties, including the privilege of making key decision, overseeing the work of other employees and having at least significant input in personnel decisions.

Unfortunately, whether through carelessness or as part of an unlawful way to save money, employers often try to get around these rules on paper and then tell their employees that they are not getting overtime.

When this happens, employees have legal options available to them and should consider speaking with an experienced professional.