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    Employment Law Divison

    California Overtime Exemptions – Exempt vs. Non-Exempt Employees

    Under California law, exempt employees generally have a white-collar job, get paid as a salary rather than an hourly wage, and are not entitled to wage and hour laws protections such as overtime pay or meal breaks and rest breaks. For 2024 in California, exempt employees must earn at least $1,280 a week ($66,560 yearly).

    Many exempt employees fit into one of five categories:

    You are only an exempt employee if your job duties meet the legal definition under the California Labor Code. Your employer can NOT make you an exempt employee simply by

    • having you sign a contract stating that you agree to be an exempt employee, or
    • paying you on a salary basis rather than hourly rates.

    Below, our California employment and labor law attorneys answer the following frequently asked questions about the difference between exempt and non-exempt employees in California:

    If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

    1. Which employees are exempt?

    The following job categories and occupations have exempt status under California labor law. Therefore, overtime wages and other wage and hour laws do not apply.1

    1. White-collar jobs (executive, administrative, and professional employees) – It is a common misconception that anyone who is paid a salary or works in an office is an exempt employee under this category.2 To be exempt, “white-collar” employees must:3
      • Have primary duties that are executive, administrative or professional (this generally means that 50% or more of their work time must be devoted to such tasks, such as general business operations); and
      • Regularly and customarily exercise discretion and independent judgment at work; and
      • Earn a salary equivalent to at least twice the state minimum wage for full-time employment (40 hours/week).4
    2. Computer professionals – This exemption applies to employees who work primarily in computer systems analysis, software or hardware design or computer system or program design or development.5 All of the following must be true true:6
      • The employee is primarily engaged in intellectual or creative work that requires the exercise of discretion and independent judgment; and
      • The employee is highly skilled and proficient in the application of highly specialized information to computer systems analysis, programming or software engineering; and
      • The employee earns at least $55.58 per hour, or $115,763.35 per year paid on a monthly basis (these figures are as of 2024 and will increase with inflation).7
    3. Doctors and surgeons –  To be exempt, doctors must earn at least $101.22 per hour or the full-time salary equivalent.8 This exemption does not apply to residents, interns or doctors covered under collective bargaining agreements.9
    4. K-12 private school teachers – In order to qualify for this wage/hour exemption, a teacher must:10
      • be primarily engaged in the task of imparting knowledge to students; and
      • customarily and regularly exercise discretion and independent judgment; and
      • have either a bachelor’s or higher degree from an accredited university or valid teaching credentials; and
      • earn the greater of: 100% of the lowest salary offered by any school district in California to credentialed teachers, or 70% of the lowest salary offered to credentialed teachers by the school district in the city or county where the private school is located.11
    5. Government and University of California employees12
    6. Outside salespeople – To be exempt, the following must be true:13
      • The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and
      • The employee must be customarily and regularly engaged away from the employer’s place or places of business.
    7. Commission-earning employees – This exemption applies to people who earn:
      • earn more than one and one-half times the minimum wage (as of 2024, more than $24.00 per hour); and
      • earn more than half of their compensation from commissions.14
    8. Truck drivers – Interstate truck drivers and truckers transporting hazardous materials are exempt from overtime laws but not for meal and rest break laws.
    9. Union employees – There must be a collective bargaining agreement with explicit terms governing hours, wages, and working conditions. Pay must be at least 30% higher than the state minimum wage, and there must be a premium wage rate for overtime work.
    10. Other exempt jobs – California’s “wage orders” specify certain occupations as exempt due to the nature of the work. Some of these include:
      • Old-age home managers
      • Certain nannies
      • Live-in domestic help
      • Ambulance drivers and attendants;
      • Agricultural laborers
      • Personal attendants
      • Camp counselors⁠
      • The spouse, children, and parents of the employee

    Note that registered nurses are non-exempt employees unless they are primarily engaged in executive or administrative tasks and meet the other requirements of the white-collar exemption.15

    Doctor with a patient as an example of an exempt employee in California

    Most doctors and surgeons are exempt employees under California wage and hour laws.

    2. Which wage and hour protections do not cover exempt employees?

    Exempt employees are exempt from California overtime laws.16 This means that, if you are an exempt employee, your employer does not need to pay you time-and-a-half wages if you work:

    • more than eight hours in a workday, or
    • more than 40 hours in a workweek, or
    • more than 6 consecutive days in a workweek.

    In addition, California employers are not required to provide regular meal and rest breaks to exempt employees the way they are required to provide them to non-exempt employees.17  Only non-exempt employees are entitled to:

    • an unpaid 30-minute meal break for working more than five hours; and
    • a paid 10-minute rest period for each four hours worked.

    3. What can I do if my employer misclassifies me as exempt?

    Going to Human Resources or talking to your boss about your status may solve the problem. Otherwise, we help employees who have been misclassified as exempt to bring wage/hour lawsuits against their employers to collect unpaid overtime compensation.

    Misclassified non-exempt employees may also be eligible for compensation for meal and rest breaks that were not granted to them. If numerous employees are affected, a wage and hour class action lawsuit may be appropriate.

    Here at Shouse Law Group, we have seen far too many instances of employers misclassifying non-exempt employees as exempt to avoid paying overtime or meeting other California labor law requirements. In many cases, the employer:

    • counts on the employee not knowing the law and
    • claims that the employee is exempt because they are paid a salary rather than an hourly wage or have a “desk job.”

    In some cases, an employee may even be asked to sign an employment contract “agreeing” to be exempt from overtime requirements–and then be asked to perform a large amount of “work off the clock.”

    Though under California wage and hour law, none of these factors will make a non-exempt employee exempt.

    Additional resources

    For more information, refer to the following:

    Also see our related articles, What does “full time exempt” mean? A labor lawyer explains and unpaid wage claims.

    Legal References:

    1. Labor Code 515 LC — Exemptions [from wage/hour laws]. Also see the federal law and federal regulations, Fair Labor Standards Act (FLSA). See also: Safeway Wage & Hour Cases (Court of Appeal of California, Second Appellate District, Division Four, 2019) 43 Cal. App. 5th 665. Also see Morales v. 22nd Dist. Agricultural Assn. (Court of Appeal of California, Fourth Appellate District, Division One, 2016) 1 Cal. App. 5th 504. See also Harris v. Superior Court (2011) 53 Cal. 4th 170.
    2. Based on the facts of Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555.
    3. See note 1. Courts use a “duties test” to determine whether an employee is exempt.
    4. See 8 California Code of Regulations (“C.C.R.”) 11040(1)(A).
    5. Labor Code 515.5 LC — Computer software professionals; exemption from wage/hour laws.
    6. Same.
    7. Same. The software professional wage/hour exemption in California does NOT apply to: Employees who have not attained the skill and expertise to work without close supervision; Trainees or entry-level employees still learning to apply highly specialized information in the computer field; Employees who engage in the operation of computers or the manufacture, repair or maintenance of computer hardware; Employees who are engineers or drafters who are highly skilled in computer-aided design but not in computer systems analysis, programming, etc.; Writers who provide content connected with computers and software; or Employees who engage in highly-skilled computer systems analysis or programming for the purpose of creating effects imagery for the movie, TV or theater industry.
    8. State of California, Department of Industrial Relations, Memorandum re Overtime Exemption for Licensed Physicians and Surgeons.
    9. Labor Code 515.6 LC –Licensed physicians and surgeons; exemption from § 510 [overtime laws]. See also Labor Code 514 LC.
    10. Labor Code 515.8 LC — Teachers at private elementary or secondary academic institutions; Section 510 not applicable; exemptions [from wage and hour laws].
    11. Same. See also Duran v. U.S. Bank National Assn. (2014) 59 Cal. 4th 1.
    12. 8 C.C.R. 11040(1)(B). See also Johnson v. Arvin-Edison Water Storage Dist. (Court of Appeals, Fifth Appellate District, 2009) 174 Cal. App. 4th 729, 95 Cal. Rptr. 3d 53. See also Kim v. Regents of Univ. of Calif. (2000) 80 Cal.App.4th 162, 166.
    13. See Department of Labor Exempt Outside Sales Employees.
    14. 8 C.C.R. 11040(3)(D).
    15. Labor Code 515 LC — Exemptions [from wage/hour laws].
    16. Labor Code 515 LC — Exemptions [from wage/hour laws], endnote 1 above; 8 C.C.R. 11040(1)(A), endnote 3 above.
    17. 8 C.C.R. 11040(1)(A), endnote 3 above.

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