The Law at Work: Employer that misclassifies employee as exempt faces liability for overtime pay based on employee’s estimate of hours
A California employee is presumed to be entitled to overtime pay for more than eight hours of work a day or more than 40 hours of work a week unless an employer can show the employee meets all the criteria of the executive, administrative, or professional exemption or other narrow exemption. Where an employer wrongly classifies an employee as exempt and consequently doesn’t keep records of his time, the employee will recover overtime pay based on his estimated number of overtime hours sufficient for a judge to make a “just and reasonable inference” of the hours he worked, unless the employer can show precisely how much overtime the employee worked or can show why the employee’s estimate is wrong or unreliable. In his The Law at Work column in the San Diego Union-Tribune, Shareholder Dan Eaton examines a recent ruling involving the former sales and marketing director of the East Bay Express, an Oakland weekly newspaper, to remind employers to use care in classifying employees as exempt in light of the potential consequences of getting it wrong.
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