For IT and computer technology professionals, long hours, working weekends and being on call come with the job. When these employees are classified as exempt white-collar workers or independent contractors by their employers, it unjustly deprives them of the ability to collect overtime pay for their long hours of hard work.
Unfortunately, misclassifying employees in order to shortchange them on their pay is commonplace. Misclassification cases are complex, but the misclassification attorneys at Wilshire Law Firm are always at the forefront of this evolving legal landscape.
If you work in the technology sector and believe your employer has classified you as an exempt employee or an independent contractor in an effort to avoid paying you overtime, you do have rights. Contact Wilshire Law Firm today by filling out our contact form or at 1-800-903-1758 for a free, confidential consultation.
Who Is Considered an Exempt Employee?
Under California law, employers do not have to provide exempt employees and independent contractors with overtime pay, meal breaks, or rest breaks (although employees who receive a commission are entitled to rest breaks).
California law, however, assumes that all employees are entitled to overtime pay, and that all persons who perform work are employees.
As a result, in order for an employer to lawfully pay you as an exempt employee, and assuming your pay is not based on a commission or outside sales activities, the employer must prove that you:
- Are paid at least double the current minimum wage for a 40-hour work week.
- Perform mostly white-collar tasks for more than half of their workweek. Examples include the hiring, firing and managing of other employees.
- Exercise independent judgment and discretion in your work.
Additionally, if the above factors do not apply and you are a computer professional, the employer must prove that you:
- Are paid at least $43.58 per hour or have an annual salary of $90,790.07 (this amount changes every year).
- Spend more than half of your workweek engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment.
- Are highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering.
Common fields where IT and computer professionals are not exempt from overtime are installers, applications testers, troubleshooters, and network administrators because this type of work is not intellectual or creative within the meaning of the California exemption.
My employer said it was an honest mistake? Can I still sue for unpaid overtime or independent contractor misclassification?
Yes, ignorance of the law is not an excuse. Even if your employer did not knowingly misclassify you, you are still entitled to collect unpaid overtime wages.
I’m a 1099 employee. Can I sue for misclassification?
Yes. Again, California law assumes that all persons who perform work are employees, not independent contractors. The exceptions to this rule are very narrow, and generally require that the hiring entity proves: (1) it does not have the right to control your work; (2) the work you perform is outside the usual course of the hiring entity’s business; and (3) you are customarily engaged in an independently established, trade, occupation, or business of the same nature as the work you perform.
Can I be fired for requesting a change to non-exempt status or from independent contractor to employee?
No, employers may not retaliate against an employee who requests a change in their status. In fact, it is illegal for an employer to do this.
I’m still not sure if I’ve been misclassified. What should I do?
There are several guidelines for determining an employee’s status. Wilshire Law Firm’s misclassification attorneys can answer your questions and go over your situation with you. Call us today for a free, completely confidential consultation.