There are many signs of misclassification to look out for if you are/have been an employee in California. The requirements for being an exempt employee are clearly described below.
What’s more, a California Labor Law attorney can carefully assess your case if you suspect you are a victim of misclassification. Here’s how to know if you have been misclassified
I. What is Your Hourly Pay?
Exempt employees in California and other states are usually paid a salary as opposed to hourly. If you are paid a salary that isn’t linked to the hours you work, you are probably exempt. However, it is possible for an exempt employee on a salary to be non-exempt if they are being paid lower than the required hourly pay.
Exempt employees must meet the salary threshold discussed above. Generally, exempt employees are paid more than a minimum wage whether they work full-time or part-time. If you are paid a salary and want to know if it qualifies to make you an exempt employee, divide your total monthly salary based on a complete work week (40 hours a week) to get your hourly pay. It should be more than the minimum wage if you are an exempt employee.
Example: In 2021, all exempt California employees were entitled to a salary of at least $58,240 per year (if working for an employer with 25 or fewer employees) or $54,080 (if working for an employer with 26 or more employees). This translates to a $14.00 and $13.00 minimum wage, respectively, based on a 40-hour workweek.
Suppose you were classified as an exempt employee in California in 2021, but you were paid less than $14.00 (when working in a company with 25 or fewer employees) or less than $13.00 (when working in a company with 26 or more employees). In that case, you may have been misclassified intentionally or unintentionally by your employer and need to take legal action.
II. Is Your Pay Deducted Regularly?
Another common sign of misclassification of exempt employees in California is regular wage deduction. If you are exempt, but your employer deducts your pay when you miss a few hours, you are misclassified. Exempt employee pay isn’t supposed to be based on hours worked.
III. Do your Job Duties Change?
Classification of employees in California is based on several factors, including job duties. If you are an exempt employee, but your job duties change, you are likely to be a victim of misclassification. Exempt employees are generally professionals or individuals in executive or administrative roles. Such roles require them to exercise independent judgment and discretion at least 50% of the time while doing their work. An employer who changes the duties of an exempt employee is guilty of misclassification.
IV. What Does the ABC Misclassification Test Say?
California is among the states that are subject to the ABC test for establishing misclassification. The test establishes whether a person is an independent contractor or employee to ascertain what workplace laws they are subject to.
Generally, you are an employee as opposed to an independent contractor unless you work without being controlled or directed by your employer, do work outside your employer’s usual course of business, and have your own independent trade or business.
The ABC test presumes employee status and makes it an employer’s responsibility to show that the individual in question is an independent contractor and not an employee.
Other blog posts on misclassification of exempt employees:
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