Q: My employer is paying me less than California minimum to pay an exempt employee. How do I go about this?
I never signed any paperwork that on how I would be paid or how much. Everything was verbal and I was told I was an exempt employee. However I am making less than the minimum required by CA. I want to know how to go about this as I am still employed. Would I be owed backpay? Could I be fired for mentioning it?
A:
To be properly characterized as an exempt employee you must be paid at least double the minimum wage. If you have not been paid that amount, your remedy is that you are considered non-exempt, meaning you would be entitled to overtime pay, meal and rest periods, and other things non-exempt employees were entitled to receive. You do not get to have the employer pay you retroactively for the money you should have received, i.e., double minimum wage.
There can be substantial penalties involved for an employer that misclassifies and employee as exempt.
It would be unlawful for your employer to terminate you for seeking to be paid and treated properly.
Good luck to you.
Brad S Kane agrees with this answer
A:
I am James L. Arrasmith, Founding Attorney and Chief Lawyer of The Law Offices of James L. Arrasmith.
If your employer is paying you less than the California minimum wage for an exempt employee, this may violate California labor laws. You could potentially be owed backpay for the shortfall in wages. You are protected under California law from retaliation for discussing wage concerns with your employer, and termination for raising this issue could be unlawful. I recommend consulting a legal professional to assess your situation and guide you through the appropriate steps.
A: It is problematic that the salary offer and the terms (hours per week, exempt vs non-exempt, etc.) are not in writing in this case. Even so, an experienced employment attorney can help you approach your employer to clarify and rectify the situation. There are minimum pay requirements for exempt employees, just like there are for non-exempt (minimum wage). If you are making less than state guidelines, your employment lawyer will help you make it right and pursue back pay, if appropriate. It is within your right to ask to be paid properly; if your employer were to retaliate with a negative action as a result, this would be against employment laws and something to discuss this with your employment lawyer also.
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