For the last 5 years I’ve worked for a company primarily doing development work for Graphical User Interfaces (fairly technical, requires some programming). I’ve also spent a lot of time in IT Support, taking helpdesk calls for hardware & software issues.
The split in my time is probably 60/40.
I’m trained as a programmer and have worked in the field for almost thirty years and have a considerable skill set.
I’m making almost 60K, am salaried and am classified by my employer as exempt.
We were acquired recently by a large CA based corporation. They reclassified some employees as non-exempt, but I am still exempt.
My OT for the last 5 years has varied between 250-375 hours per year.
Do you think I am classified incorrectly?
What are the odds of winning if I pursue this?
Thanks!
I agree with Mr. Dal Bon's response. In addition, the statute of limitations for overtime claims is 3 years and sometimes 4 if a claim for unlawful business practices can be added. As such, consult with an employment law attorney asap so you don't lose more time IF you have an overtime claim. Also, overtime claims carry with them 10% interest plus attorneys' fees and in some instances late payment penalties of up to 30 day's pay.
Mr. Dal Bon's response is very comprehensive. Ms. Karila's suggestion to act quickly because your statute of limitations is running is good advise.
In order to answer your questions an attorney would first need to evaluate your job duties and responsibilities. If it appears that you have a viable claim for unpaid overtime wages, your may have a sizable claim.
Generally an employee who worked over 40 hours in the workweek must receive one and one-half times his or her regular rate of pay for all hours worked over 40 in the workweek. Further, all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek shall be paid at one and one-half times the employee's regular rate of pay for; and double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.
You will benefit from consulting with an experienced employment law attorney and having them evaluate your case. The California Employment Lawyers Association maintains a list of employment law attorneys who represent employees against employers. Follow the link to: www.cela.org.
Mr. Dal Bon has given you a great response. Please pay attention to the minimum compensation that is required before a computer tech can be classified as exempt. You make less than the mandatory amount, as you did in 2013. Assuming you performed the duties described in Mr. Dal Bon's answer,it looks like you were misclassified.
Even if your employer violated the law, there may be many reasons not to do anything about it just now. Taking action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about unlawful pay practices, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking retaliatory action in the first place. You may find yourself out of a job in this terrible economy and unable to find a replacement. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.
There is an alternative, though it involves waiting. California law requires an employer to pay an employee all accrued wages, vacation, PTO, and ascertainable commissions AT THE TIME the employer ends the employment relationship. If the employee quits without advance notice, the employer has 72 hours to make this payment.
If the employer does not pay as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit.
So when your employment with this employer ends you can pursue a wage claim or lawsuit if you are not paid everything as required, provided you are still within the time limit (see below).
You will need documentation to support your case. Keep your documentation at home, not at work, to make sure it remains private and doesn't disappear. For documentation:
Keep track of all the information related to this situation. Write down the details using names, dates, location, witnesses, times of day – as much as you can. Save copies of any documents.
For every work day, keep a log of all your work time, including the time you start working, the time you stop working, and the start and stop times of any breaks (meal or rest). Time spent walking to or from a time clock is considered work time, not break time. Many people find it helpful to keep this information on a calendar.
For every work day, keep track of the actual work duties you perform and how much time you spend on each duty.
When you are ready: The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm. You have THREE YEARS from the last day of work to file a Labor Commissioner claim for unpaid wages.
If you pursue a lawsuit in state court, you have the potential to recover unpaid wages going back FOUR YEARS (instead of three) from the date you file suit, per Business & Professions Code sections 17200 et seq.
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