Are-You-Exempt-Really.jpg (4297×2317)An “exempt employee” is one who does not have to be paid overtime. Federal law is quite clear on this matter. You are exempt if one or more of the following is true:

  1. You have managing the enterprise as a primary duty, have the authority to hire or fire others and regularly direct two or more employees (This is an “exempt executive” – anyone who owns at least 20% of the business is also considered exempt, perhaps because they would be paying overtime pay to themselves).
  2. You do non manual work directly related to the operation of the business – examples include marketers, office managers, insurance agents. You make independent decisions, can decide policy, and commit the company on significant matters (such as purchasing).
  3. You are a specialized professional such as a doctor, dentist, or vet – you have advanced knowledge and have gone to school for a long time and are performing duties directly related to said advanced, intellectual knowledge.
  4. You primarily make sales away from your employer’s office.

In addition to one of these four, you need a salary of at least $23,660 a year ($33,280 in California), unless you are making outside sales. Job duties are more important than titles. There have been attempts to increase this amount, which is rather outdated, but they have been unsuccessful.

Misclassification of employees is a constant problem. For example, somebody may have the title of “manager” but not routinely direct others (although they may qualify under point two above instead). Also, some companies think salaried employees are automatically exempt because they are paid the same regardless of the amount worked – this is not true. Another common misconception is that employees can be given comp time instead of overtime pay. In fact, comp time is only legal for employees who are exempt from overtime. If you pay somebody hourly or by commission, they are not considered exempt, even if they meet the other criteria.

If you have been misclassified, then your employer owes you back pay (generally double what the employer failed to pay you). It is best to try to get the mistake corrected before going to court – although it is illegal to fire you for pointing out the problem, hard feelings and tension are likely to ensue. Also, if you have been misclassified, you are probably not alone. Working with other victims of the error (which it generally is) can help you get satisfaction from your employer without having to go to court.

It is worth pointing out that misclassification tends to benefit everyone except the employer when it comes out. Also worth considering is whether your employer can afford the back pay and the amount owed – some small companies have literally been driven out of business. The sooner the mistake is corrected the better for everyone. You should, in fact, bring it up as soon as you notice it. Pay attention to job descriptions – missing or unclear job descriptions have been known to cause confusion about how an employee should be classified. Job titles are essentially meaningless as the statute refers to duties, not to the title.

Establishing whether you are exempt or not is relatively simple, but if you discover you have been misclassified and need advice, you need a good employment lawyer to help you straighten things out. A quality employment attorney will be able to double check how you should be classified, give you advice on approaching your employer and ultimately support you if you need to go to court.

Aiman-Smith & Marcy are consumer fraud, employment and class action attorneys operating out of Oakland, California. They specialize in employment issues including unpaid overtime and wages, and have taken on powerful companies on behalf of employees who have been misclassified or not paid overtime due. If you think you have been misclassified as an exempt employee and asked to work more than 40 hours a week, contact them today for a free initial consultation.

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Lisseth Bayona


Education and Background

I am a Los Angeles native and daughter of Salvadorian immigrants. From an early age, my parents instilled the value of hard work and education in me and my two siblings. Their perseverance enabled each of us to graduate from college and earn professional degrees.

My interest and commitment to workers’ rights have roots in my parents’ experiences as undocumented workers in Los Angeles. Witnessing the challenges they faced inspired me to pursue a career where I can help individuals confronted with similar struggles. To help someone in those moments is very satisfying. I love connecting with people and learning about their stories. I believe that dignity in the workplace is a right of all workers, not a convenience or privilege reserved for employees of a certain race, gender, age, sexual orientation, or gender identity.

Legal Experience

I received my J.D. from the University of Southern California (USC) Gould School of Law. While there, I served as a judicial extern to the Honorable Patrick J. Walsh of the United States District Court for the Central District of California, where I drafted a criminal judicial opinion. Also, while at Gould, I served as an extern for the U.S. Attorney’s Office for the Central District of California. As a Criminal Division Extern, I had the opportunity to work closely with a trial team of Assistant U.S. Attorneys on a money laundering case which further sparked my interest in litigation.

Personal Interests

In my free time, I enjoy urban vegetable gardening, traveling, and spending time with my nephew and niece. I also love to spend time at San Onofre Beach learning to surf, although admittedly, I am not very good.



Hallie L. Von Rock

Attorney (SBN 233152)

Education and Background

I moved to the Bay Area from Washington after graduating high school. I had been accepted to UC Berkeley through a program where I could defer for two years while getting my California residency and attending community college, which was significant since I was paying for college on my own. I began working for Randall Aiman-Smith and Reed Marcy in 1996 as an office manager while taking night classes. My first foray into the legal world was soon after starting at the firm when I was ready to transfer to UC Berkeley. Rather than accepting my resident status, the Board of Regents took the position that California residency required a student to be in California “two calendar years.” Randall and Reed took up my case with the same verve as they helped their actual clients and I got the chance to comb through the UC Berkeley library to read their codes and regulations to support my position. In that experience, I learned what is was like to feel helpless against a big organization and then to have dedicated attorneys in my corner to take up my cause.

After a break to pursue my major in art history, I went to UC Hastings College of Law and continued working with Randall and Reed. Having worked together now for over 25 years, we have a unique ability to work collaboratively and finish each other’s sentences. I have strived throughout my career to make a difference in the lives of our clients. At the end of the day, if I am helping someone to get compensation for losses they suffered, then I know that all the work put into a case has been worth it.

Legal Experience

I have extensive experience in civil litigation and class action cases, including conducting discovery and depositions, calculating damages analysis, preparing motions for certification, writing appellate documents, and overseeing claims administration. We have handled several class actions against retailers where plaintiffs claimed they were forced to purchase clothing to wear to work and were not compensated for these purchases, including against Abercrombie & Fitch, Hugo Boss, Armani Exchange, Uniqlo, Dollar Tree, and Ross. Recently, I was trial counsel in a defamation claim against Bank of America on behalf of a former employee who claimed the Bank blacklisted her with future employers. The jury found Bank of America liable, including for punitive damages.

Personal Interests

Aiman-Smith & Marcy has sponsored me in the Boston Marathon and New York Marathon. When I race, I often wear a “Rockstar Ronan” shirt to support research for childhood cancer through The Ronan Thompson Foundation.


University of California, Berkeley, B.A., 1999

Hastings College of the Law, University of California, J.D., 2004

Randall Aiman-Smith

Abogado (SBN 124599)

Aiman-Smith & Marcy. Oakland consumer fraud attorneys.

Educación y antecedentes

Fui afortunado. A pesar de no haber terminado la escuela secundaria o la universidad, pude -aunque con mucho trabajo- ser admitido y sobresalir en una de las mejores escuelas de derecho del país: La Facultad de Derecho de la Universidad de Berkeley. Mientras estuve allí, tuve el privilegio de ser editor de la California Law Review y miembro del Moot Court Board, asesorando en la redacción de escritos y en la defensa de apelaciones a otros estudiantes. Después de salir de la escuela de derecho, en mis primeros años de práctica, enseñé la escritura legal y la defensa de apelación en la Universidad de California, Hastings College of the Law. También, a lo largo de los años, he sido presentador en eventos de educación legal continua.

Experiencia legal

He sido abogado durante 35 años. He dedicado mi práctica exclusivamente a representar a empleados, consumidores e inversores en los tribunales estatales y federales de primera instancia y en los tribunales de apelación. Me gusta ir a los tribunales por mis clientes y he llevado muchos casos con jurado en los tribunales estatales y federales.

¿Ejemplos? En 2010, fui la abogada principal, junto con los otros abogados del bufete, en el caso Williams v. Union Pacific Railroad donde, después de cuatro años de preparación, el bufete obtuvo un veredicto del jurado de 1.670.000 dólares para una empleada afroamericana. En Rivero v. Surdyka, fui el abogado principal en el juicio y la apelación de un caso de derechos civiles que duró 15 años, incluyendo un juicio completo y tres apelaciones al Noveno Circuito, concluyendo finalmente con una sentencia para los demandantes de más de 2.300.000 dólares. Estos casos ilustran el lema del bufete: compromiso – resultados. Hay que comprometerse con un caso, a veces durante mucho tiempo, para obtener el resultado que el cliente merece.

No siempre ganamos en el juicio. Cuando eso ocurre, el compromiso significa llevar el caso al siguiente nivel y recurrirlo. En el caso Rivero, antes mencionado, eso fue lo que ocurrió: el tribunal desestimó el caso -habíamos perdido- pero apelamos y conseguimos una victoria para nuestros clientes que mantuvimos a través de dos apelaciones más. Desde entonces, el bufete ha conseguido muchas victorias en apelación que reivindican los derechos de los empleados y los consumidores.

A lo largo de los años he sido abogado de los demandantes en numerosos casos individuales y acciones colectivas. Puede sonar cursi, o difícil de creer, pero después de todo este tiempo, y después de todas las grandes experiencias que he tenido, mi parte favorita de ser abogado es cuando consigo dar un cheque a mi cliente.



Facultad de Derecho, Universidad de California, Berkeley, J.D., 1986