Employment Law

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Employment - Misclassification

Improper misclassification typically falls into two categories:

• Non-exempt employees that are misclassified as exempt employees, such as assistant managers, customer service representatives, and loan processors; and
• Employees that are misclassified as independent contractors, such as salespersons, customer service representatives, and truck drivers.

Non-exempt employees are entitled to many more benefits and protections than independent contractors and exempt employees are. They are also more expensive to employ, which creates an incentive for employers to misclassify them.  "Employers who claim that an exemption applies to their employees...must show that the employees fit 'plainly and unmistakenly within [the exemption's] terms.'"  (Abshire v. County of Kern, 908 F.2d 483, 485-486 (9th Cir. 1990).)  The burden is on the employer to plead and prove the necessary facts to establish an exemption.  (Donovan v. Nekton, Inc., 703 F.3d 1148, 1151 (9th Cir. 1983).)

As under federal law, California employees employed in an administrative, executive, or professional capacity are exempt from both the minimum wages and overtime provisions of California law.  To be exempt under this category, an employee must:

• Be primarily engaged in duties that meet the test of the exemption; and
• Customarily and regularly exercise discretion and independent judgment in performing those duties; and
• Earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.

If you think you may have been misclassified, call us today and after a brief interview we can determine if you have been misclassified.