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Employee Misclassification

Employee misclassification is the practice of labeling workers as independent contractors, rather than employees.  When a worker is misclassified as an independent contractor, he or she is not subject to California minimum wage and overtime protection laws. The job title given to the employee does not matter; paper job descriptions do not matter.  What matters is what the employee actually does on a regular basis.

One of the most common misclassification errors has to do with the Outside Sales classification.  Sometimes, this comes up in connection with commissioned salespeople, who may also be unlawfully deprived of being paid the minimum wage for each hour worked.

Misclassifying employees as “exempt” from receiving overtime pay is another common violation by employers. An employee classified as “exempt” is usually paid a salary, and not paid any overtime. An employee classified as “non-exempt” is paid hourly, and is entitled to overtime pay if he or she works more than 8 hours in a day or 40 hours in a week. The Fair Labor Standards Act (“FLSA”) creates a general presumption that ALL employees are entitled to minimum wage and overtime unless the employer can show that the employee meets an exception to the FLSA.

Under California law, overtime and minimum wage exemptions apply to executive, administrative or professional employees, as well as outside salespersons and state and local government employees, among others. Due to the complexity of these categories, contact a misclassification attorney at Kased Law Group, to determine whether you have been misclassified as “exempt” and therefore owed overtime compensation. It is important to know that there is no hard-and-fast rule to determine whether you are exempt or non-exempt under the FLSA, rather, there are several factors that must be analyzed with respect to the actual day-to-day duties of your job.