Bankers-Hours-Getting-Them-Misclassified-as-Not-Overtime-Eligible.jpg (2149×1159)The rules established in the Federal Fair Labor Standards Act (FLSA) are well-known. An employer must establish a workweek and must pay overtime when hours worked exceed 40 hours in the workweek for “non-exempt” employees (not managers, paid hourly). Pay must be at least minimum wage and overtime must be at the rate of time and one-half the regular rate for hours over 40. In spite of the clear rules established in the act, bank employees who are paid hourly often miss out on overtime pay. Almost all banks have stopped giving overtime altogether.

Hourly Employees Are Not Exempt:

Hourly employees of banks, mortgage companies, or insurance companies are often classified as “exempt employees,” a category reserved for executive, administrative, or professional work categories. In order to be classified that way, an hourly employee must meet the conditions of an administrative exception, which comes in when in the work they do, the employee can work with a level of discretion that can considerably impact the business. In actuality, few bank employees meet that exception, most are more comparable to production employees. Their work has little to with the running of the business, rather it’s focused on the goods and services the company offers.

Duties Test:

According to the law, the bank can’t make an employee exempt simply by changing a job title. The exception has to do with actual work done, not the job title. Employees must pass a “duties test” to be reclassified. A secretary is still a secretary even if the title gets changed to “administrative assistant.” The exempt “executive” category, for instance, means that the employee:

  • Regularly supervises two or more employees (as a real part of the job function).
  • Has management as the primary duty of the position.
  • Has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).

Legal Action:

Banks and financial services were the subject of a U.S. Supreme Court decision in 2015 when they upheld the Department of Labor’s interpretation that mortgage loan officers do not qualify for the administrative exemption to the FLSA. There have been a number of collective legal actions in this area. This may be one of the most litigated areas of labor law. Recently, a $36 million settlement was won by loan appraisers who were ruled not to be exempt from FLSA’s overtime and requirements. The Department of Labor has proposed a significant change to the salary requirement for exemption to the overtime rule as well.

Banks Counterattack:

Paying overtime wages to hourly employees is regarded by many banks as a serious incursion on their profitability. Many financial institutions are being advised by their consultants to reorganize their staffing to force a fit into the letter of the law.

To counter changes in labor law, some banks are reportedly working on plans to convert hourly wages to a salary basis, on an hourly rate equivalence (with a downward adjustment in the salary to account for possible overtime pay). Some institutions are considering a fluctuating work week as a countermeasure as well.

Part of the problem is that many of misclassified employees regard their misclassification as a badge of honor. They believe that their classification as “management” or “executive” really reflects their value to their employer. Their willingness to seek regress is uneven at best.

Some banks are considering changes in the duties employees are actually performing to make employees fit within the exemption conditions. Banks are examining the duties their potentially non-exempt employees are actually performing and how much time they spend on each function in an effort to optimize job descriptions into a form which could pass the duties test for exemption. They are being urged to proceed with all due care, documenting the process in anticipation of future legal challenges.

Personal Action:

On the other hand, if you are an employee of a bank or financial institution and have been misclassified, you should contact a lawyer who can help you take action to restore your just wages.

Aiman-Smith & Marcy are a team of collaborative lawyers who work together on every aspect of your case. We view each case as a partnership between ourselves and you, the client. If you are being treated unfairly or under an illegal working arrangement, please contact us.

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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