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California Restaurant and Retail Employee Classification

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A number of California restaurant overtime and retail overtime class action lawsuits have been filed against retail stores and restaurants, claiming retail misclassification and restaurant misclassification. If Managers and Assistant managers are misclassified as exempt, they may be owed overtime back pay.


California Retail and Restaurant Employee Misclassification

california-retail-restaurant-overtime Class action lawsuits allege that California retailers and California restaurants are violating California overtime laws and the Fair Labor Standards Act (FLSA) for wrongfully misclassifying restaurant managers and assistant managers and retail managers and assistant managers as exempt.

California Assistant Store Managers and Restaurant Assistant Managers working on salary over 40 hours a week, and who perform non-exempt duties could be entitled to overtime pay. The California labor law and federal law mandates overtime pay for California workers performing non-exempt work.

If the following non-managerial job duties are typically performed by a salaried assistant manager, they are likely entitled to overtime pay:
  • Telephone duties
  • Janitor duties
  • Working at Cash registers
  • Stocking shelves
However, if an assistant manager has the ability to hire or fire other workers, exercise discretionary power or make recommendations regarding other workers, they should generally be classified as an exempt employee and are therefore not entitled to overtime pay.

If you work in California and are an Assistant Manager, Assistant Store Manager, Co-Manager, Assistant Retail Manager, or are in a similar assistant manager job position and do not get paid for working overtime, you may be owed overtime back pay for being wrongfully misclassified as an exempt employee. Many major US retailers have misclassified assistant managers as exempt--meaning they might be denied overtime. If you are a current or former assistant manager at a retail outlet, including Williams Sonoma, Pottery Barn, Restoration Hardware and dozens of other major retailers, you may be owed back pay for being wrongfully misclassified as an exempt employee.

Other major retailers that might wrongfully misclassify their employees include:

7-Eleven, Express, The Limited, Pier 1 Imports, A&P, Target, Wal-Mart, Staples, SuperValu, RadioShack, gas stations such as Chevron, Exxon, Sunoco, Mobil; J. C. Penney, Sears, Macy's, FedEx, Kinko's, Payless Shoes, Abercrombie & Fitch, American Eagle Outfitters, Best Buy, H&M, Foot Locker, and Nine West.

California Exempt from Overtime Pay

california-overtime-cafe-manager Many California retailers and restaurants "misclassify" workers as managers or assistant managers. In California a manager or assistant manager must earn two times the minimum wage (approximately $28,000 per year) to qualify for an exemption from overtime pay.

Managers or assistant managers can lose their exempt status if more than 50 percent of the work they perform on a daily basis is work performed by non-exempt workers. For instance, if an assistant manager in a retail store spends more than 50 percent of their time doing the same work performed by salespeople ( doing sales or answering phone calls), they would be entitled to receive overtime pay for all hours greater than eight in any workday and all hours in excess of 40 per week.

As well, a great number of companies do not pay 1.5 times an employee's regular rate of pay for overtime work, which is in violation of the California labor code and federal law.

California Retail and Restaurant Employee Misclassification Lawsuits

Fastenal: The construction and industrial supplies retailer agreed to pay $10 million to settle unpaid overtime claims. The suit alleged that the company failed to pay overtime wages to its assistant managers at its stores in California. The unpaid overtime lawsuit claimed that Fastenal violated state and federal law by improperly classifying its assistant managers as exempt employees.

BJ's Wholesale Club: In Nov. 2009, BJ's Wholesale Club reached a $9.3 million settlement with almost 1,500 current and former midlevel managers who were misclassified as exempt from overtime pay.

Fresh & Easy Neighborhood Market, Inc.: A wage and hour class action is brought on behalf of all team leaders and assistant mangers employed by Fresh & Easy in the state of California from July 30, 2005 to the present. According to the suit, Fresh & Easy failed to pay all wages due and/or overtime, failed to provide meal breaks, and failed to provide rest breaks in violation of California law.

Johnson Controls: This case alleges that Defendant Johnson Controls failed to provide its District Maintenance Supervisors with proper wages and/or overtime pay, failed to provide proper meal breaks under California law, failed to keep accurate time and pay records, failed to indemnify employees for business-related expenses, and failed to pay wages when due upon discharge. In addition, the case alleges that all of Defendant's employees in California were not compensated for work-related expenses, nor paid for vested vacation pay.

If you are—or were-- employed as a manager or assistant manager in California and believe that you were misclassified as exempt, you may not have not been paid all of the overtime pay, hourly wages, salary and other benefits that you are entitled to. Speak with a wage and hour attorney and know your rights. And keep in mind that retaliation is also a violation of the California labor code and a federal labor law violation.

California Restaurant and Retail Overtime Legal Help

If you or a loved one has suffered damages in this case, please fill in our form on the right and your complaint will be sent to a lawyer who may evaluate your claim at no cost or obligation.

Last updated February 11 2011

Reader Comments

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My question is I am a salaried assistant manager at Alonti Catering in Santa Ana and was told today that i cannot have a 30 minute lunch break after telling the General Manager that I need to call two doctors for two test i have to take told under california law that i was not elgible to take a 30 minute lunch how can i find out if I am elgible to take a lunch break and I work 9 hours a day to 10 or 11 depends on business

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