To qualify as an exempt employee, an employee
must be “primarily engaged in the duties that meet the test of the exemption”
and “earns a monthly salary equivalent to no less than two times the state
minimum wage for full-time employment.” Labor Code section 515.
This
forms the two part test the employees must meet to be exempt: (1) the salary
basis test and (2) the duties test. Yes, this Friday’s Five post is
published on a Saturday, but a holiday party obligation got in the way (it did
cross my mind, but I saved my readers from the obligatory “how to through a holiday
work party and avoid litigation” article – so I figured this will make up for
the late post). Here are five general issues employers should know about
the salary basis test:
1. To qualify for a
“white collar” exemption, employees must be paid at least twice the state
minimum wage.
To be exempt the requirement of having to pay
overtime to the employee, the employee must perform specified duties in a
particular manner and be paid “a monthly salary equivalent to no less than two
times the state minimum wage for full-time employment.” (Lab. Code, § 515,
subd. (a).) As of July 1, 2014, the minimum wage in California increased
from $8.00 to $9.00 per hour. It is set to increase again to $10.00 per
hour on January 1, 2016. With the increase in the state minimum wage,
there is a corresponding raise in the minimum salary required to qualify as
exempt under the “white collar” exemptions. Therefore, on July 1, 2014,
in order to qualify for a white collar exemption, the employee must receive an
annual salary of at least $37,440, and as of January 1, 2016, the threshold
annual salary increases to at least $41,600.
2. DOL proposal to
increase the salary for required to meet the salary basis test under the FLSA
is just a proposal (for now).
As I have previously written, the Department of
Labor announced in June 2015 that it was considering a proposal to increase the
salary basis amount under the Fair Labor Standards Act (FLSA) for the white
collar exemptions from $23,660 to $50,400. The Wall Street Journal is reporting that this proposal is not likely to become
effective (if at all) until late 2016. Employers need to understand that
the DOL’s proposal pertains to federal law. California employers need to
abide by which ever salary basis level is higher – California state law or the
FLSA. It is important to understand the difference, and keep up to date
on the DOL’s proposal in 2016.
3. The employee’s salary
cannot be reduced for quality or quantity of work.
In a recent case, Negri v. Koning & Associates (2013), an insurance claims adjuster challenged his
employer’s exempt classification of his job. The plaintiff was paid $29
per hour with no minimum guarantee, and when he worked more than 40 hours in a
week, he still only received $29 per hour. The employer attempted to
argue that the plaintiff was an exempt employee under the administrative
exemption. The court rejected the employer’s position in holding that
because the employee did not receive a guaranteed amount in “salary”, the
employee did not meet the salary basis test to qualify as exempt. In
determining what constitutes a salary, the court looked to federal law:
An employee is paid on a “salary basis” if the employee “regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided in paragraph (b) of this section [(relating to absences from work)], an exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked. Exempt employees need not be paid for any workweek in which they perform no work. An employee is not paid on a salary basis if deductions from the employee’s predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business. If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” (29 C.F.R. § 541.602(a) (2012)
Therefore, because the plaintiff’s pay varied
according to the amount of time he worked, and was not guaranteed a base
amount, he did not meet the salary basis test and was found to be non-exempt.
4. If misclassified, the
employee is entitled to unpaid overtime.
For all non-exempt employees, overtime is owed
at a rate of one and one-half times the employee’s regular rate of pay for all
hours worked in excess of eight hours up to and including 12 hours in any
workday, and for the first eight hours worked on the seventh consecutive day of
work in a workweek. Double the employee’s regular rate of pay is owed for
all hours worked in excess of 12 hours in any workday and for all hours worked
in excess of eight on the seventh consecutive day of work in a workweek.
California’s Department of Industrial Relations FAQ on California overtime
provides a good overview of the overtime requirements under California
law. In addition to the unpaid overtime that is owed to misclassified
employees, employers also fact substantial penalties that accrue as a result of
the employee not being paid all wages when earned.
5. Approach with
caution.
California courts have made clear that the
employer bears the burden of proof when asserting that an employee is an exempt
employee. “[T]he assertion of an exemption from the overtime laws is
considered to be an affirmative defense, and therefore the employer bears the
burden of proving the employee’s exemption.” Ramirez v.
Yosemite Water Co. (1999).
Photo: Justin Lynham
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