Legal Question in Employment Law in California

Salary Job to Hourly

My husband started a job in July 2005 as a salaried weekly Service Manager for a Air Conditioning & Refrigeration Company. His duties include paperwork and scheduling, going out on the job and handling any problems his service techs would have, sometimes he was asked by the Owner of the Company to complete jobs along with his service techs and teach them as they did these jobs, but most of the time he was asked to stay at his desk in the office and manage his techs by a radio cell phone. Now that the busy season has slowed down, they want to change his pay from salary to hourly. What position should he take on this, as he was hired as a salary position with his hours being 7:30-4:30. When it gets really slow he is sure he might only be working half days unless they hire another salesman which he has recommended. This past summer he worked some days till 8:00 p.m. while being on salary.


Asked on 10/30/05, 11:26 am

1 Answer from Attorneys
Patrick Turner Patrick E. Turner Inc. APLC

Re: Salary Job to Hourly

In California, employees are presumed to be nonexempt employees (and thus entitled to overtime pay), and it is the employer's burden to establish that employee falls within and "exemption" to justify avoidance of overtime pay. Based upon your description of your husband's duties, it would appear that he was properly classified as an exempt employee since he spent the majority of his time supervising and directing the work of others.

Although the law prohibits employers from classifying "nonexempt" as "exempt" to avoid paying overtime, there is nothing unlawful about an employer of agreeing to pay an otherwise "exempt" employee on an hourly basis.

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Answered on 11/02/05, 3:10 pm


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