Complaining About Being Misclassified as Exempt
If you believe that you have been misclassified by your employer as exempt from overtime when you should be compensated hourly, you might be facing the dilemma of whether to bring this to your employer's attention, how to do it and what the risks are. Below are three key considerations you should take into account before talking to your employer about your exempt status:
1. Risk of Retaliation. First, you should be aware that the reality is that there is always a risk that the employer will retaliate against you for complaining about not being properly paid. Even though this would clearly be illegal and in violation of California anti-retaliation laws, the employer can still choose to retaliate / fire you and then deal with the legal consequences of that retaliation and termination later, if and when you choose to pursue a case against them. So, the important questions are (a) how likely the employer is to retaliate against you based on your perception and experience with your management and (b) whether you are willing to take that risk.
2. Effect of Misclassification. The second issue to determine is how your being misclassified affects you. Being misclassified as exempt has the most significant effect when you work more than 40 hours a week or 8 hours per day but you are not paid for your overtime. You should calculate how much you are losing in compensation by being misclassified and then decide whether that amount would justify confronting your employer about it. It might be a good idea to talk to an attorney to determine whether you have in fact been misclassified based on your job duties and your relationship with the employer before approaching your employer.
3. The Importance of Being Courteous With Your Employer. If you have decided to bring the issue of being misclassified to your employer's attention, it's important that you are being nice and courteous with your employer at all times. You should not be approaching your employer and threatening with a lawsuit out of the gate if they don't immediately change your status to hourly. Instead, politely inquire about your status and make them looking into it before taking the next step. This applies to whether you decide to complain orally or in writing (writing is a preferred method of course, if you need to document the inquiry). No one, let alone your management, likes to or responds well to being threatened. Your proper, "peaceful" approach will reduce the risk of retaliation, and will increase the chances of resolving your issue amicably and without losing your job.
1. Risk of Retaliation. First, you should be aware that the reality is that there is always a risk that the employer will retaliate against you for complaining about not being properly paid. Even though this would clearly be illegal and in violation of California anti-retaliation laws, the employer can still choose to retaliate / fire you and then deal with the legal consequences of that retaliation and termination later, if and when you choose to pursue a case against them. So, the important questions are (a) how likely the employer is to retaliate against you based on your perception and experience with your management and (b) whether you are willing to take that risk.
2. Effect of Misclassification. The second issue to determine is how your being misclassified affects you. Being misclassified as exempt has the most significant effect when you work more than 40 hours a week or 8 hours per day but you are not paid for your overtime. You should calculate how much you are losing in compensation by being misclassified and then decide whether that amount would justify confronting your employer about it. It might be a good idea to talk to an attorney to determine whether you have in fact been misclassified based on your job duties and your relationship with the employer before approaching your employer.
3. The Importance of Being Courteous With Your Employer. If you have decided to bring the issue of being misclassified to your employer's attention, it's important that you are being nice and courteous with your employer at all times. You should not be approaching your employer and threatening with a lawsuit out of the gate if they don't immediately change your status to hourly. Instead, politely inquire about your status and make them looking into it before taking the next step. This applies to whether you decide to complain orally or in writing (writing is a preferred method of course, if you need to document the inquiry). No one, let alone your management, likes to or responds well to being threatened. Your proper, "peaceful" approach will reduce the risk of retaliation, and will increase the chances of resolving your issue amicably and without losing your job.