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Complaining About Being Misclassified as Exempt 

misclassified as exempt from overtime California
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. 

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; [email protected]
  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
  • Practice Areas
  • About
  • Results
  • Submit Case
  • Contact
  • Resources
    • Consultations
    • Workplace Rights Checklist
    • Deposition Tips
    • Mediation Tips
    • Effective Mediator
    • Suing Current Employer
    • Severance Agreements
    • Workplace Investigation
    • Arbitration
    • Statutes of Limitations
    • Healthy Litigation Mindset
    • Trial Tips
    • Working Remotely
    • How To Find The Right Lawyer For Your Case