Under California labor rules, an exempt worker must spend at least 50% of his workweek performing exempt work. Otherwise, he may be classified as hourly and thus eligible for overtime pay.
It’s up to the employer to establish exempt status and to provide the proof that the worker did perform exempt tasks at least half the time. If pressed to do so in court, could you prove that? Start with an accurate job description and analyze a few typical weeks of work.
Recent case: Gerardo, who managed two restaurants, was designated as exempt. After one of the restaurants was sold, the owners offered Gerardo a lower salary to manage the remaining one. He refused and was terminated.
Then he sued, alleging he had performed hourly work more than half the time during a typical 50-hour week.
The restaurant owners came to court with detailed lists of exactly what Gerardo had done during a typical workday and workweek. They explained everything from banking runs to managing catering deliveries to assisting hourly workers. Everything was broken down to the quarter hour or less.
The court accepted the owners’ accounting. Adding up the numbers, it concluded that Gerardo had been properly classified as exempt under California law because he spent more than 50% of his time doing exempt work. (Ramirez v. ISB Mehta, Court of Appeal of California, 2017)
Final note: If sued for such a classification issue, get an attorney’s help right away. It’s especially important if it’s clear some tasks could be considered either hourly or exempt. That might depend on whether the operation is big enough to warrant assigning an hourly worker to the task or small enough to have a manager perform it.