Questions & Answers:
Below are the questions submitted during the live webinar, along with the answers provided by Roxana Verano, Esq. If you have questions of your own or require further information regarding wage and hour laws, feel free to contact Landegger Baron Law Group (see contact information to the left).
What is the criteria for classifying an employee as exempt?
The three primary exemptions are Executive, Administrative, and Professional. There is also a Computer Employee exemption and an Outside Sales Exemption. Employees who qualify for these exemptions are exempt from both the minimum wage and the overtime premium pay. To qualify for any of the three primary exemptions, an employee must meet the requirements of the applicable job duties test and be paid on a salary basis at no less than $455 per week. For example, in addition to the salary requirement, the Executive Exemption requires that (a) the employee's primary duty must be "managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise," (b) the employee must direct the work of at least 2 full time employees, and (c) the employee must have authority to hire or fire other employees or have a say in those type of decisions. The Administrative Exemption requires that (a) the employee's primary duty must be the "performance of office or non-manual work directly related to the management or general business operations of the employer, or the employer's customers," and (b) the employee's primary duty include the "exercise of discretion and independent judgment with respect to matters of significance." It is difficult to meet these requirements, and legal counsel is strongly recommended to ensure the employer is making the proper classification. Also, the employer should check to see if its specific state has laws concerning the classification of employees.
Can the workweek be different for different unions?
Unions can generally establish a workweek in their Collective Bargaining Agreement. If two different categories of employees belong to two different unions, and each union has it is own Collective Bargaining Agreement, it is possible for the workweeks to be different. However, the employer has the ability to negotiate all these terms at the time the Collective Bargaining Agreement is being drafted.
In California, what is the minimum salary requirement for an exempt employee? Minimum wage goes up July 1st so I assume minimum salary goes up as well?
That is correct. The minimum salary for a properly classified exempt employee is at least twice the minimum wage. Beginning July 1, 2014, an exempt employee must earn at least $37,440 per year in California.
I let my employees manage their time. As long as they get the job done, I don't interfere with their schedule. Can I ask them to sign a permanent waiver? If not, can I request that they send an email every time they decide to take their lunch after the 5th hour? What's the best approach to handle this?
California law does not allow employees to manage their own time, and you should not ask them to sign a permanent waiver. Employers have the obligation to make meal periods "available" to the employees, and in doing so, employers must "relieve" employees of all duties in order for the employee to take a 30-minute meal period. Moreover, the employer cannot impede, discourage, or dissuade employees from taking their meal periods. As a general rule, employees should not be allowed to manage their own time (your practice is very risky). Remember that the burden to prove compliance with the provisions of the Labor Code is on the employer.