What-Your-Employer-Cant-Do-if-You-Are-Exempt-Part-2.jpg (2149×1159)[Continued from Part 1]

Welcome back to the second half of our two-part article on how employers have misused the ‘exempt’ employment classification. Not all employers understand the rules for exempt employees, and many try to exploit the situation and actively defy employment law. Last time, we focused primarily on how employers cannot dock your pay under (almost) any circumstances. Even if you come in late, even if you work less than 40 hours, even if you make a mistake on the job.

Join us today as we pick up where we left off with exempt status requirements and how employers can void that status by mistreating employees.

Reduce Your Salary Below the ‘Exempt’ Level

The one way an employer can reduce your pay is to fully reduce your contractual salary. This has been a method used in the past, but by lowering your salary they may place you back in the realms of non-exempt. Remember, an exempt employee has to make over $43,680 per year ($840/wk) to qualify for the ‘no overtime’ and guaranteed salary rules. Anything that takes you below that amount (including covering certain expenses like travel or party planning) will automatically make you non-exempt.

If a pay cut, in particular, takes you down below exempt status, you are now qualified to collect overtime pay at time and a half. However, because this is a contractual change to your role, this non-exempt transformation does not include back-pay for overtime worked while your pay was higher. If the drop in pay was due to expenses, this falls under the same rules as docking your pay.

Revoke Your Decision-Making Duties

Exempt employees must have a certain degree of independence and discretion in their work. In other words, they must be decision-makers who mostly decide their own schedules and take personal responsibility for their projects. Doctors and lawyers, managers and creatives are likely to be considered exempt based on their duties because they have authority and control their own work tasks. Where secretaries, clerks, and non-manager team members almost never qualify as exempt because they are managed and daily tasks are assigned to them.

So if your employer decides to revoke your freedom, managerial status, or discretion-based duties, you may no longer be considered exempt. Interestingly, how you are treated by your boss can also influence this. If you are micro-managed, you probably don’t count as exempt even if you would be with a more hands-off boss.

Misclassify You as Exempt or Non-Exempt.

Finally, there are many employers who try to ‘save money’ by defining all their salaried workers as exempt. This, frankly, is illegal and a disservice to everyone who has been misclassified. It is usually used as a way to work employees hard, then deny them overtime pay instead of offering the privileges of rank, freedom, and income stability.

So if you don’t make more than the minimum exempt salary, don’t have control over how you use your time at work, or your employer has ever docked your salaried pay, you are not actually exempt. And your employer probably owes you overtime back-pay for any weeks you worked more than 40 hours.

Have you been mis-classified as exempt or mistreated as an exempt employee? You don’t have to take this callous (or possibly mistaken) mistreatment lying down. If speaking to your manager and HR hasn’t resolved the problem, or if your employer refuses to pay out your rightful overtime back-pay, you have options. Here at Aiman-Smith and Marcy, we specialize in employment law and forcing employers to face the consequences for their actions. Mistreatment of the exempt employee status is a serious legal violation, one that many employers use to take advantage of their staff. Let us help you hold your employer accountable. For a consultation on your personal situation, contact us at Aiman-Smith & Marcy today. We’re always ready to help.

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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