Misclassification of Non-Exempt Employees

California Wage and Hour Laws – Non-Exempt Employees Paid as Exempt


California law is very protective of the employees working in this state, especially when it comes to their wages earned and hours worked. The source of this law is the California Labor Code and the regulations created by the Industrial Welfare Commission.


If you are interested in filing a civil lawsuit, you very likely will need legal representation. Strauss Law Group usually represents employees on a contingency basis, meaning that we only get paid if we win. Contact Strauss Law Group now for a free case evaluation or call us 24/7 at (805) 641-9992 or (877) 641-9992 (toll free).


The vast majority of California employees are “non-exempt,” which means that they are entitled to minimum wage, overtime, double-time, meal periods, adequate paycheck stubs, and penalties. “Exempt” employees would have the same entitlements.

The fact that you are paid on a salary basis does not mean that you are “exempt.” In fact, countless salaried employees are still non-exempt, so long as they meet certain criteria. The analysis is long and confusing, but the bottom line is that California law makes it very hard for employees to be “exempt,” even if they are paid on a salary basis.


  • Worker is a manager at a retail store. He spends most of his time ringing up the cash register, sweeping the floors, stocking the shelves, and assisting customers. He spends less than 50% of his time performing exempt duties like supervising other employees or creating a marketing campaign for his store. Worker is paid $42,00 a year in salary, but he works 10-hour days and never gets a meal period.

    • Analysis: It is most likely that this individual is non-exempt. As a result, if his employer cannot disprove his non-exempt status, he can collect 10 hours of overtime and one extra hour of pay for each of five meal periods he missed each week going back four years. Based on this information, Worker’s “regular” rate would be approximately $20.20, so he would be entitled to $42,016 in unpaid overtime, $21,008 for missed meal periods, penalties of $6,060, interest on the wages owed, and attorney fees.

If you believe you were mis-classified as exempt, then you may be entitled to collect unpaid overtime, penalties for missed meal and rest periods, unreimbursed job expenses, penalties (see below), and more for the last four years. Contact Strauss Law Group now for a free case evaluation.


In any action for unpaid wages, if it can be shown that the employer willfully refused to pay minimum wage, overtime, or double-time or to provide meal periods, the employer can be held liable for penalties. These penalties include 30 days of pay for each aggrieved employee.


  • Worker prevails on a claim for missed meal periods and can show that the employer acted willfully in denying the meal periods. Worker was making $45,000 a year in salary and she worked eight-hour days. Based on this information, Worker’s “regular” rate would be approximately $21.60, so her penalties would be 30 days x 8 hours x $21.60 per hour, or $5,184.

Back to FAQs