Do You Make Under $47,476? Read This.

If you make less than $47,476.00, you may be entitled to a substantial amount of unpaid overtime by your employer due to a change in California and federal employment law.   

For legal background, there are two employee classifications in California: exempt employees and non-exempt employees.

Exempt employees are not entitled to overtime for any hours worked in excess of eight hours per day or 40 hours per week, meal breaks every five hours, rest breaks every four hours, and other protections. A non-exempt employee could work 100 hours per week and not be entitled to anything but their regular salary (ie. $60,000 per year). A properly classified non-exempt employee must be paid a minimum salary of $47,476 beginning December 1, 2016, and must spend 51% of their time performing non-exempt job duties, such as supervising of other employees or perform high-level office work, like accounting or human resources.

Non-exempt employees are entitled to overtime, breaks, and many other protections. For example, a non-exempt employee would be entitled to 20 hours at 1.5 times their regularly hourly rate if they worked 60 hours per week. Statistically, most employees are non-exempt, even employees that spend some time managing other workers or who perform non-manual office work.

Employers regularly misclassify employees as “exempt” to avoid rigorous obligations to pay overtime and provide breaks. However, there is a common misperception among workers and employers that an employer simply needs to pay an employee a flat salary, rather than an hourly wage, in order to classify an employee as “exempt” from overtime. Payment of a salary rather than an hourly wage is just one of many factors in determining whether an employee is properly classified.

Moreover, beginning December 1, 2016, all exempt employees must be paid a minimum salary of $47,476 in order to be properly classified as exempt. This means that any worker paid under $47,476 must be paid overtime and be provided with rest breaks beginning December 1, 2016.

The new law means that many exempt employees will be getting a pay raise to $47,476 or more beginning December 1, 2016, or will be converted to hourly-paid employees. However, many employers may not change their policies in light of the new law.

Are you a Santa Cruz or  Monterey County salaried employee and paid less than $47,476.00? If so, call the Law Office of Brian Mathias for a free consultation.

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I'm Gonna Get You!! What is “Retaliation” in Employment?

Retaliation is a very misunderstood concept in employment law. Much like the terms “wrongful termination” and “harassment”, the legal definition of “retaliation” is narrower than the common definition.

As commonly understood, retaliation in employment means any form of employer-revenge as a result of the employee speaking out over any workplace issue.

Legally speaking, retaliation is only illegal if the employee engaged in “protected activity”. Not all activities are protected against retaliation. There are dozens of types of protected activities in employment law. The most common forms of protected activity are good faith complaints of unlawful discrimination based on the employee’s disability or health condition, requests for health accommodation, pregnancy, gender, race, religion, sexual orientation and other legally protected characteristics.

As an example of un-protected activity, take the case of Julia. Julia has worked as a nurse for five years for Franciscan Hospital in Santa Cruz, California on it’s prestigious cancer treatment ward. Julia is passionate about treating patients with cancer. Unfortunately, Julia gets a new manager, Bob, who abruptly reassigns Julia to the hospital’s incredibly boring podiatry unit. Julia is miserable in the podiatry unit. She repeatedly complains to management and says that her work is “boring”, that it “doesn’t effectively use her skill set” and that “the job stinks”. Eventually, Bob gets tired of Julia’s complaints, and at the end of the year recommends that the hospital terminate Julia’s employment.

Unfortunately nurse Julia does not have a case for retaliation against the hospital. Did Bob the supervisor act morally and ethically in taking away her beloved job on the cancer ward? Probably not. Did Bob most efficiently apply Julia’s skill set at work? Nope. Was it vengeful, mean, and immature for Bob fire Julia after she complained? Absolutely. However, Julia still does not have a case for retaliation because she did not engage in protected activity.

As an example of activity that is protected against retaliation, let’s change the facts and imagine that nurse Julia suffers from diabetes. Nurse Julia has to take daily ten-minute breaks during work to take insulin and test her blood sugar to manage her diabetes. She must also regularly take time during the workweek to attend doctor appointments. Unfortunately, Julia’s new manager, Bob cannot stand Julia’s time away from work and issues her a poor performance review. Bob specifically gives Julia a one-star ranking in the categories of “attendance” and “teamwork” and writes “Julia should manage her health condition on her own personal time, not at work.”

After receiving the poor performance review, Julia submits a written complaint to Bob and the hospital’s CEO about Bob’s comments and states, “I’m being discriminated against because of my diabetes…” and “I will need periodic breaks from work to manage my diabetes.” After receiving the complaint, the hospital CEO fires Julia because he does not want a “complainer” working for him.

Julia has a great case for unlawful retaliation. Julia engaged in protected activity by complaining about Bob’s discriminatory conduct and by requesting a reasonable accommodation to manage her health condition. Julia would be entitled to reinstatement, economic, and emotional distress damages under California’s Fair Employment and Housing Act.

Are you an Aptos, Santa Cruz, Watsonville, or Monterey County employee experiencing retaliation at work? Call the Law Office of Brian Mathias before you are terminated for a free consultation.

Ready to stand up for your rights?