In California, exempt workers are those who are not protected by wage and hour laws. Non-exempt workers are protected by these laws, giving them rights to overtime pay, a minimum wage, and meal and rest breaks. California labor law determines whether a worker is exempt; not the employer.
Here are 10 examples of exempt and non-exempt workers in California.
10 examples of exempt workers in California
California labor laws exempt certain workers from the legal protections the laws provide. 10 examples of these exempt workers in the state of California are:
- store managers,
- school administrators,
- information technology (IT) professionals,
- teachers in a private high school,
- public employees,
- traveling salespeople, and
- sales workers, so long as they earn at least 1.5 times the minimum wage, with more than half of it coming in commissions.
These and other California workers are classified as exempt professionals if, and only if, they fall into one of the following categories:
- the white-collar or the professional exemption, which covers:
- executive employees,
- professional employees, and
- administrative employees;1
- computer professionals,2
- licensed doctors and surgeons,3
- private school teachers,4
- employees of state or local governments,5
- outside salespeople,6 and
- certain commission-earning employees.7
10 examples of non-exempt employees
If a job does not fall within a valid exemption, then the worker doing it is covered by California wage and hour law. These workers are classified as non-exempt. Generally, 10 examples of non-exempt employees would be:
- restaurant wait staff,
- construction workers,
- delivery drivers,
- retail associates,
- office clerks,
- security guards, and
- general laborers.
However, it is the actual job duties that determine whether you are exempt or non-exempt, not your job title or whether you are a salaried employee or not. If you have one of these job titles but the performance of the work falls within a category for exemption, you may get classified as an exempt worker.
What is the difference between exempt vs. non-exempt?
Exempt workers are exempted from the legal protections provided by California’s wage and hour laws. Non-exempt workers are entitled to those protections. This means that exempt workers are not entitled to:
- overtime pay, or
- meal or rest breaks.
There are also minimum wage issues for exempt workers.
Under California overtime rules, non-exempt workers are entitled to overtime pay for each hour worked in excess of:
- 8 hours in a single day,
- 40 hours in a single workweek, or
- 6 consecutive days in a workweek.8
That overtime is paid at the rate of one-and-one-half times your regular rate of pay.
Additionally, workers are entitled to double-time pay, or twice their regular hourly rate of pay, if they work overtime hours of more than:
- 12 hours in a single workday, or
- 8 hours on the seventh consecutive day in the workweek.9
Exempt workers are not entitled to this extra pay for an extra number of hours worked, even if they surpass a 40-hour workweek.10
Meal and rest breaks
Non-exempt workers are also entitled to meal and rest breaks under California law.
For meal breaks, you are entitled to one unpaid 30-minute meal break if you work more than 5 hours in a day. You can waive this break if you are not working more than 6 hours in the day. If you work more than 10 hours in a day, you are entitled to a second unpaid 30-minute break. You can waive this second meal break if:
- you did not waive the first one, and
- your workday is not longer than 12 hours.11
For rest breaks, you are entitled to a paid 10-minute period for every 4 hours you work, or for each substantial fraction thereof. If you work less than 3.5 hours, you are not entitled to a rest break. Any breaks that you take have to be as close to the middle of your shift as feasible.12
Exempt workers are not entitled to these meal or rest periods.13
Non-exempt workers are entitled to California’s minimum hourly wage. While exempt workers are not entitled to this protection, their exempt status often depends on their salary being well above the minimum wage.
For example, in order to be classified as exempt under either the executive exemption or the administrative exemption, you would have to be paid on a salary basis. That monthly salary must pay at least twice the California minimum wage for full-time employment.14
If an exempt worker’s salary is below the required threshold, they lose their exemption. As non-exempt workers, they become entitled to receive at least the state’s minimum wage. They also become entitled to other legal protections, like overtime regulations and break periods.
What can I do if I have been misclassified as exempt?
It is not uncommon for California employers to misclassify workers as exempt. It allows them to request overtime or “off the clock” work without paying more for it. In some cases, they include a provision in their employment contract that purportedly makes an employee exempt.
However, California employment law determines whether you are exempt or not. Your employer does not get to make this decision.
If your employer misclassifies you as exempt, you may be able to handle it internally. This often requires bringing the issue to your boss or to the human resources department. If this does not work, you can file a wage/hour lawsuit against your employer. These actions can demand the unpaid wages and other compensation, such as unpaid overtime wages, that you have been denied. In many cases, you will not be the only one who has been misclassified. Many wage/hour claims based on worker misclassification become class action lawsuits.
An employment lawyer can help you recover what you are owed.
- California Labor Code 515 LAB.
- California Labor Code 515.5 LAB.
- California Labor Code 515.6 LAB.
- California Labor Code 515.8 LAB.
- 8 California Code of Regulations (CCR) 11040(1)(B).
- 8 CCR 11040(1)(C) and 29 USC 213.
- 8 CCR 11040. However, the details for each of these categories can get very nuanced. Many of them have minimum salary level/salary threshold requirements. Others require specific job descriptions, and courts use the “job duties test” to determine employee classification. For example, in order for outside salespeople to be classified as exempt under state law and the Fair Labor Standards Act (FLSA), the leading federal law covering the workplace, they must be 18 years old or older, customarily and regularly spend more than half of their working time away from their employer’s place of business, and either sell items or obtain orders for products, services, or the use of facilities. To qualify for the executive exemption, meanwhile, you would have to: manage general business operations as your primary duty, regularly direct the work of at least 2 employees, exercise or influence the authority to hire and fire employees, and regularly exercise discretion and independent judgment on the job. If you have eligibility to be classified as exempt but do not fall into one of these categories, you may be misclassified. An employment attorney can help you understand your rights.
- California Labor Code 510 LAB.
- California Labor Code 515 LAB and 8 CCR 11040(1)(A).
- California Labor Code 512 LAB.
- 8 CCR 11040(12).
- California Labor Code 515 LAB and 8 CCR 11040(1)(A).
- California Labor Code 515(a) LAB. See also U.S. Department of Labor (DOL) re. federal minimum wage.