Six months ago I was promoted from a clerk to a manager of a motel. I am paid $2,000 a month before taxes, I was given an apartment (two rooms put together, but no hot water and no kitchen) and I am required to work a minimum of 80 hrs per week at the front desk. I don't need the apartment, I could just as easily stay with my parents a few miles away, but it was not an option. In addition to the front desk work I also have to make deposits at the bank and sometimes get a few supplies at the hardware store for our maintenance guy - both on my own time. These very long hours are really starting to get to me. I've been told that even though I signed an agreement, because my job is almost exactly the same as when I was a clerk, that I have a lawsuit and should get overtime. Is this true?
You are probably not an exempt employee, though the employer may be entitled to credit for the apartment only if there is a written agreement providing such a wage credit. California Labor Code §1182.8 provides: "No employer shall be in violation of any provision of any applicable order of the Industrial Welfare Commission relating to credit or charges for lodging for charging, pursuant to a voluntary written agreement, a resident apartment manager up to two-thirds of the fair market rental value of the apartment supplied to the manager, if no credit for the apartment is used to meet the employer's minimum wage obligation to the manager." Brock v. Carrion, Ltd. (2004) 332 F.Supp.2d 1320
According to the Division of Labor Standards Enforcement,
The executive exemption to the overtime requirements only apply to:
A person employed in an executive capacity means any employee:
1.Whose duties and responsibilities involve the management of the enterprise in which he or she is employed or of a customarily recognized department or subdivision thereof; and
2.Who customarily and regularly directs the work of two or more other employees therein; and
3.Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and
4.Who customarily and regularly exercises discretion and independent judgment; and
5.Who is primarily engaged in duties, which meet the test of the exemption.
6.An executive employee must also earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment means 40 hours per week as defined in Labor Code Section 515(c).
You may very well have a case for overtime pay. If you are a nonexempt employee performing nonexempt tasks (answering phones, etc., - not managerial duties) over 50% of your work time, you are probably owed overtime of time and one-half over 8 hours in a work day (not including meal periods) OR over 40 hours in a work week and double time for over 12 hours in a work day. If you work 7 consecutive days in the workweek, you may be entitled to time and one-half for the first 8 hours and double time after that. In addition, if you are a nonexempt employee, your employer must provide the opportunity for you to take breaks and meal periods. If your rights have been violated, you are owed the overtime going back 3 years (sometimes more), plus 10% interest plus waiting time penalties (money) of one day's pay for each day you have to wait to be paid - up to a max. of 30 days PLUS the law provides that your employer "shall" pay your attorney her/his fees. Call an employment law attorney to discuss. Many employment law attorneys offer a free initial phone consultation.
Employers often try to characterize salaried managers as exempt employees, but from your description is sounds as if the employer is simply trying to avoid paying overtime. Trips you take for your employers' benefit, i.e., bank and store, need to be compensated. You should consult with an employment lawyer to discuss all of the details of your employment because, from the few details you have shared, you appear to have legitimate claims for additional compensation.
Based on your description of the facts, the answer is probably yes, you may be misclassified as an exempt employee and are entitled to overtime and breaks (rest periods and meal periods). The crucial inquiry is whether you meet the exemption requirements under California. Considering that you are paid 2k a month, that sounds unlikely because one of the requirements re exempt employees is that they have to earn at least twice the minimum wage (33,280 annually, or around 2773.33 monthly). Contact a labor attorney immediately. Most provide a free and confidential consultation.
A link concerning employee rights and a guide to breaks is below. Hope they help.
It is very possible your employer has misclassified you as an exempt employee to avoid having to pay you overtime. A true manager must spend more than half their working hours performing managerial functions, including managing 2 or more employees. Additionally, it does not appear you are paid enough wages (even if you are credited with housing) to be truly exempt.
You have a few options available to you, which should start with consulting with an experienced employment law attorney for a more informed case evaluation. The attorney could then advise you of your best legal options, which could start with a demand for compensation to the employer, could include a wage claim with the Division of Labor Standards Enforcement, or even a lawsuit if the case is worth incurring the time and costs.
Assuming that all the facts in your question are accurate, then yes, it seems you have been misclassified by your employer and you should be paid overtime and should be provided meal and rest periods. Unfortunately, we see this happen a lot when employers try to control their labor costs by paying otherwise non-exempt employees a "salary."
You should definitely speak to an experienced California employment lawyer who is well-versed in California's wage and hour laws, to determine whether you have a case and how to proceed.
In the meantime, I'd suggest keeping a log of the hours you work each day, and noting whether, what time, and for how long you are able to take meal and/or rest breaks.
As the other attorneys have noted, the facts you describe would appear to suggest you have been misclassified as an exempt manager. You can file a wage claim with the Department of Labor Standards Enforcement. Alternatively, you can retain an attorney and sue in civil court. Assuming your claim is successful, you would likely be entitled to reasonable attorney fees in addition to your back pay.
I wish you the very best of luck.
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