Am I entitled to be paid overtime or not?

Question

I am salaried employee at the large company but I have been working in the kitchen same like hourly cook because the short staff. The person who works same hours, they get $32/hour plus overtime but I don't get any overtime because I am salaried employees. Some month, I was not allowed to take regular days off  because the place was busy but the salaries still same. Last month and this month, I work 80 hours/week without any lunch or rest break. I caluculated my hourly based on my work hours, it is only $11. It is much lower than CA minimum pay. These days, I am mentally and physically tired. I started work this company since 2019 and no improvement even I asked. If I can collect overtime and I can get enough money to take a rest to go to look for new job. I would like to sue. Is it possible?

Maya L. Serkova · Answer

To be properly classified as an exempt (salaried) employee, you must be paid at least double the minimum wage assuming a 40 hour workweek,  must spend the majority of your time performing tasks that are considered executive, professional or administrative as those terms are defined in the Wage Order for your industry. It is not uncommon that salaried employees are forced to not only manage but also spend a lot of time doing non-managerial tasks, and if those tasks consume more than half of your workday, you may be misclassified. If that is the case, you may have a claim for overtime pay and meal and rest period violations, and the Labor Code provisions related to hours worked would come into play.  
 
I suggest you consult with an employment law attorney who will further examine your situation and explain your options.  Most employment law attorneys in California offer free of charge initial consultations, and thereafter may take your case on a contingency basis, meaning you do not have to pay attorney’s fees unless and until there is a positive outcome for you. They may also advance either all or partial costs of litigation. 
 
You can look either on this site in the Find a Lawyer section or go to California Employment Layers Association (www.cela.org), an organization whose members are committed to representing employees’ rights. 
 
Sincerely,  
Maya L. Serkova 
mserkova@serendiblaw.com

Brad S Kane · Answer

Whether you are entitled to overtime and premium pay for missed meal and rest breaks depends on whether you correctly classified as an "exempt" employee. To be an exempt employee, must receive at least 2 times the minimum wage for 40 hours of week work. In addition, you must perform exempt work at least 51% of the time and have significant independent judgment and discretion. You should consult with an employment attorney. Most provide free consultations.

Q: Am I entitled to be paid overtime or not?