"I was the manager for the past 10 years and was considered exempt," says Darlene (not her real name), "but I was not able to fire employees, even if I had a viable reason." And there were countless times that she had a reason. Darlene was responsible to crew a job site: she would have to find employees on short notice to inventory retail outlets. If they didn't show up, it meant that she had to cover for them. That meant more work to do and as a salaried employee, Darlene found herself sometimes working 80 hour weeks for not much more than her hourly rate on a 40-hour week.
"On the job, I was also taking inventory so I was doing the same work as other hourly employees," says Darlene. "I was in the field 8-10 hours per day and spending 3-5 hours per day in the office." To qualify for exemption, most of your time should be devoted to managerial work. Clearly, this was not the case with Darlene."I was scheduling employees and calling them but that was about all I did regarding any supervisory work," she says. "A typical week would mean working 60 plus hours. Once I worked three shifts in a row: no sleep, no overtime, no nothing. I started at 6pm at the office, got my crew together and we drove almost two hours to the job site. At 4am I got a phone call from the boss and drove to Stockton-- an hour and a half drive. I worked there another six hours. Then I drove back to Sacramento and spent four hours at the office processing a store for that night and then drove 30 minutes to the next job site and worked until 7am the following morning. I didn't even get a thank you.
Our company was bought out in August, 2007 and in November I was demoted and terminated-at-will in June 2008. I was pulled aside in the middle of my shift by my two bosses and told that I was being demoted because they wanted to go in a different direction with the office.
I was demoralized. I was demoted so they could replace me with someone they worked with before—it was old school network. I was fired the same week that another, older manager was terminated. When I asked why we were fired, the boss said, 'It's a company decision and I don't have to explain it.' Funny, I thought that being a manager, I would have some say in the matter…
I talked to the California labor board about all the hours I worked when I shouldn't have been classified as exempt: I believe that I am entitled to overtime compensation. They told me that I can only go back three years to claim. Now I am going to seek legal help."
Darlene would be wise to pursue a lawsuit against her employer. And California employers should realize it is in their best interests to classify and pay employees correctly. (Recent multi-million dollar overtime settlements include Pacific Bell that settled for $35 million, Radio Shack settled for $30 million, Starbucks settled for $18 million, and many more.)
To find out if you should or shouldn't be classified as exempt, visit the California Chamber of Commerce online, which includes the California Labor Law Digest.
For an employee to be exempt as a manager, they must:
- Have primary duties and responsibilities that involve the management of their place of work.
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- Have the authority to hire or fire other employees or to make suggestions, which will be given particular weight, about personnel decisions regarding other employees.
- Customarily and regularly exercise discretionary power.
- Spend more than 50 percent of his or her time engaged in managerial duties that meet the tests in Items 1 through 4 and
- Earn a monthly salary equivalent to at least two times the state minimum wage for full-time employment. The current minimum salary for someone to be categorized as an exempt employee is $2, 340 a month, which is twice the starting minimum wage for full -time employment.
Clearly, like thousands of other California workers, Darlene was incorrectly classified as exempt.