Can my employer change me from nonexempt to exempt without written notification? Especially as the job/role has not changed.
Is this legal?
Can you change status if the role has not changed?
Can you change status without written notification?
I am now going to be making significantly less a year for the same role, as I won't be able to book overtime.
3 attorney answers
Whether you are nonexempt or exempt depends on your duties. There are 4 exempt categories: Professional (attorneys, doctors, etc.), Executive (business owners, officers of corporations, etc.), some computer software personnel and administrative (regularly exercise independent judgment and discretion, etc., etc. and spend at least 50% of a typical workday on exempt duties. And to be exempt, you must earn at least double minimum wage. If you have been misclassified as exempt, your employer will owe you overtime of you worked it.
I agree with Mr. Pedersen. In fact, I've seen a major retailer do something similar to what your employer did here - each department head is treated as non-exempt for the first six months, and take surveys about their job duties. If the employees spend over 50% of their time on exempt tasks, they are reclassified as exempt salaried employees. If not, the employees remain classified as non-exempt employees. My guess is that your employer either has the same attorney as this retailer (which is smart because she's really, really good), or they heard her speak at a conference and decided to use a similar method.
While I am an attorney with over fifteen years of experience, until we sign a retainer agreement, I am not YOUR attorney. My postings are meant for informational purposes only, and DO NOT constitute legal advice, nor do they create an attorney-client relationship between us. As such, the question, my answer, and any comments left to my answer, are not protected by attorney-client privilege. Also, keep in mind that all legal claims have relevant statute of limitations, some of which can be very short. So, if you believe you need to hire an attorney, and need legal advice, seek out legal representation as soon as possible.
You are an at will employee. That means your employer can change the terms and conditions of your employment at any time and for any reason or even no reason at all.
If you can lawfully be classified as exempt, it is fine for an employer to give you verbal notice that effective immediately you are now going to treated as an exempt employee. No writing is required.
There is nothing unlawful about an employer paying an employee who could be classified as exempt as a non-exempt employee, so the mere fact that you have been changed in classification without changing your work duties is not necessarily proof that you are now being misclassified.
If you have now been misclassified as exempt when you should still be considered a non-exempt employee, then you may have several Labor Code violation claims associated with the misclassification. It would be wise for you to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.
Most employment attorneys who practice this area of law work offer a free or low cost consultation in the beginning and then, if the matter has merit and value, will usually agree to work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.
Good luck to you.
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