I am a non-profit employer in CA. I have an hourly employee I want to move to salary. How do I ensure I am doing this legally?

Asked about 1 year ago - Oxnard, CA

The Program Administrator is part of our organizational management team and supervises our language interpreter program, with 15 on-call employees but only deploys employees for approximately 15-20 hours/week. She also coordinates our volunteer program (a total of 20-30 hours/week of volunteers). She provides administrative support to our office operations--helping with reports, communications, some database oversight and also representing the organization in public. I am concerned that she does not meet the requirement that a person supervise 2 FTE to be salaried. Her income is currently $16.50/hour and I would give her a raise to $36,000/year with the change to salary. I want to be careful though to ensure her position is legitimate for salary, and I also explain it to her clearly

Attorney answers (6)

  1. Kristine S Karila

    Contributor Level 16

    1

    Lawyer agrees

    Answered . Your question shows that you are thoughtful but may have a misunderstanding about employees' pay requirements. The issue is not whether it is legal to pay hourly or salaried, but whether the worker is exempt or nonexempt (from overtime pay, etc.) The issue of exempt or nonexempt can be confusing and requires an analysis of his/her duties. If he/she spends over 50% of their time on exempt tasks (answering phones, typing, cleaning, etc., etc.) they are nonexempt and you must pay overtime pay if they work over 8hours in a workday or 40 hours in a workweek. It would probably be wise to consult with an employment law attorney. Many can consult with you via phone.

  2. Tuvia Korobkin

    Contributor Level 13

    1

    Lawyer agrees

    Answered . You are wise to seek an attorney's guidance on this issue. Much litigation arises as a result of employers' failure to perform proper due diligence in classifying employees as exempt.

    It is difficult to answer your question based on the limited information provided in your question. For example, the requirement of "directs the work of two or more employees" may or may not be met in this case, but even if it is, that is but one of many factors that must be met in order for the employee to qualify for the "executive" exemption. There are other exemptions, such as the administrative exemption, that do not have the supervisory requirement but have other requirements.

    You should retain an attorney who specializes in California wage and hour law to go over all the relevant facts and who can help you draft a job description for this employee. In addition, this attorney should advise you regarding the many nuanced regulations regarding how to pay salaried employees, when deductions from their pay may be made, etc. It may cost you a few hours of attorney time, but it will be a worthwhile investment.

    Good luck to you.

  3. Benjamin M Hill

    Contributor Level 12

    Answered . For a California employer, two of the most common overtime exemptions are the executive exemption and the administrative exemption. To qualify for the executive exemption, an employee must receive a minimum weekly salary of $640 and spend more than 50% of his/her time managing the employer's business or a specific department of that business (e.g., overseeing the work at least two other employees). To qualify for the administrative exemption, an employee must receive a minimum weekly salary of $640 and spend more than 50% of his/her time performing office work directly related to the employer’s general business operations. The term “general business operations” means work that isn’t related to whatever goods or services the employer is selling to the pubic.

  4. David Maurice Decastro

    Contributor Level 3

    Answered . As the other attorneys mentioned, the critical issue is not how you pay the employee, but what she does on a daily basis and whether she fits within one of the exemptions under California wage orders. We work with several non-profit companies and have clients in Ventura and Oxnard.

    This answer is designed for general information only. The information presented here should not be construed to be... more
  5. Arkady Igor Itkin

    Pro

    Contributor Level 13

    Answered . Hello.

    Like other attorneys mentioned, the main issue is whether the administrator meets the requirements of being exempt. From what you describe, some of her duties, such as supervising, running the program, coordinating, etc... are in fact executive duties and therefore qualify her as salaried employee. However, providing admin support, helping with reports, etc... is likely to be a non-exempt work. You have to make sure that the majority of her work is that of an administrator/supervisor in order for her to be properly classified as exempt.

    Also, this really only matters if she works overtime. If she doesn't work more than 8 hours per days or 40 hours per week, not classifying her correctly is not going to have any serious consequences.

    Thanks,

    Arkady Itkin

  6. Panda Lynn Kroll

    Contributor Level 9

    Answered . To ensure you move ahead legally, you have probably figured out that you will need to consult with an attorney one-on-one. There are several law firms in your area that do this work regularly, and can give you an affordable "Ventura County" rate. Alternatively, the cost of a making a mistake and misclassifying an employee as exempt (rather than hourly) is very high, because employees frequently bring claims that although they were paid a salary, they should have been paid hourly, and were denied overtime and other benefits. You may have other questions with which a local attorney can assist you on an as-needed basis regarding managing employee leaves and other benefits. You will want to hire a local attorney to have a job description and employment agreement drawn up. I just presented a lunch seminar on managing pregnancy leaves on behalf of the Women Lawyers of Ventura County and would be happy to invite you to our next presentation.

    This answer is not a substitute for legal advice and it does not create an attorney-client relationship.  Seek the... more

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