Employees in California are either exempt or non-exempt.  Unlike exempt employees, non-exempt workers are generally paid on an hourly basis and are entitled to receive overtime and meal and rest periods.  Misclassification is a common issue throughout San Diego and Southern California at large and small companies alike.  If an you’ve been misclassified as an exempt employee, you may have a wage claim for the amount of overtime you didn’t receive, among other wages and penalties under the California Labor Code.


Exempt employees are paid a salary and are not entitled to extra payments for overtime.  Companies do not need to provide exempt employees meal or rest periods.  Exempt employees may work more than eight hours in a workday or 40 hours in a workweek without overtime pay.

Employees may only be considered exempt from overtime and meal and rest periods if they fall within a lawful exemption category. Generally, the employee must meet the following requirements to be lawfully exempt under California law:

  • The employee is primarily engaged in executive, administrative or executive duties
  • The employee regularly and customarily exercises discretion and independent judgment in his or her job duties
  • The employee earns a salary equal to at least twice the state minimum wage based on a 40-hour workweek

Employees that primarily perform manual labor or basic office functions are generally not exempt from overtime or meal and rest periods.  This happens either through employer carelessness, negligence or as an attempt to avoid paying employee-related costs and wages.  If an employee does not fall within a specific exemption, then he or she is misclassified and is entitled to damages and unpaid wages.


When an employee is misclassified, he or she misses out on overtime pay and meal and rest periods and can bring a legal claim against the company for a wide range of damages:

  • Payment of the unpaid overtime and wages
  • Meal period premiums
  • Rest period premiums
  • Interest on the amount owed
  • Waiting time penalties (up to 30 times the amount of unpaid wages owed)
  • Wage statement penalties (up to $4,000 per employee)
  • Liquidated damages (double pay)
  • Punitive damages
  • Attorney’s fees and costs

Of course, these damages are in addition to other losses an employee has sustained through unreimbursed expenses, wrongful termination and other misconduct.


Workers are frequently misclassified and may consider filing a wage and hour class action lawsuit to enforce their rights as a group.  If you believe that you should be receiving overtime pay because your job does not meet the required exemption test, contact us today to speak with a San Diego employment lawyer who will asses your case.