Exempt v. Non-Exempt Workers, and Workplace Discrimination in California

California state laws require that all non-exempt employees be compensated at time-and-a-half for all hours worked over 8 hours per day and 40 hours in a week. See California Labor Code section 510(a) and Industrial Welfare Commission (“IWC”) Wage Order, Order No. 7-2001 section 3(A). The law further requires employers to maintain accurate time records for all of the hours worked by its employees, provide accurate itemized wage statements, authorize, permit and provide meal and rest periods, and pay all wages earned to an employee immediately upon their termination.

The IWC wage orders specify three exemptions for (1) executive, (2) administrative, and (3) professional employees. The exemptions are strictly defined and narrowly construed, and the employer bears the burden of proving the applicability of an exemption as an affirmative defense. Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794.

According the applicable regulations interpreting the Wage Order, in order to qualify for the exemption, an employee must spend more than fifty percent of their time performing exempt (that is, supervisory or managerial) tasks which require the exercise of discretion and independent judgment.

Under California law, if a manager was performing exempt tasks concurrently with non-exempt tasks, the work must either be classified as exempt or non-exempt work — not both, based on the purpose of the activity serves at the facility. Heyen v. Safeway (2013) 216 Cal.App.4^th 795.

Additionally, the Fair Employment and Housing Act (“FEHA”) makes it unlawful for an employer “because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, … to discriminate against the person … in terms, conditions, or privileges of employment.” (Gov.Code, § 12940, subd. (a).) The prohibition is often restated in judicial opinions as a requirement that the discriminatory action result in “adverse employment action.” There is no requirement that an employer’s discriminatory acts constitute one swift blow, rather than a series of subtle, yet damaging injuries. Horsford v. Board of Trustees of California State University(2005) 132 Cal.App.4^th 359, 374.