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Administrative Exemptions Are Determined by Duties

June 28, 1998

Q: I am a salaried employee and, according to our human relations department, am not eligible for overtime pay. I am not an executive or administrator, nor am I a lawyer, doctor or other "professional." I am in the marketing department, in charge of my own clients but not in charge of any other employees.

Is my job considered exempt from overtime pay?

--C.R., Irvine

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A: While you say you are not an administrator, it is possible that you may qualify as an "administrative" employee and therefore may be exempt from overtime pay requirements.

There are complex rules for determining who is an administrative employee. Under state and federal regulations, the primary duties of administrative employees must involve office or non-manual work directly related to management policies or general business operations of the employer or its customers.

An administrative employee must also regularly exercise independent judgment or discretion. Unlike exempt executive employees, the administrative exemption can apply to employees who, like you, do not supervise other employees.

In some circumstances, marketing representatives have been found to be exempt administrative employees, as have some account executives in advertising agencies.

Whether you are entitled to overtime pay depends on the nature of your duties and the extent to which you work without direct supervision, make your own judgments and use technical knowledge or specialized skills in your work.

With more detailed information, an employment lawyer or the California labor commissioner should be able to tell you whether you fall within the administrative exemption to our overtime laws.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

Staff Seeks Way to Voice Opinion

Q: An executive in my organization has resigned after many years as the organization's leader, and the administration is looking to replace him.

The organization is made up of several levels of employees. Recently, all the upper-level partners and associates were asked to give input to the group searching for his replacement. But the support staff and other lower-level employees, who represent more than 50% of the organization, were not surveyed.

We think we have something valuable to say about who should lead this organization, but the message to us is clear: "Your input is not valued."

What would be the best method to get heard and to bring our concerns to the administration?

--V.M., Fullerton

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A: Put your concerns and input in writing and send it to the administrative decision makers. Encourage all of the other employees at your level to contribute to the memo, and have all of them sign it. You may also request a meeting with a higher-level executive if this seems appropriate.

You may find that upper management will be happy to hear about your concerns and interest in the matter.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College

Employer Can Require Overtime

Q: The facility where I work has reorganized to become more efficient to reduce production and manufacturing costs. I was recently informed that my overtime hours would be eliminated.

I responded that I understood the company's position and that because of my financial needs I would be seeking additional employment elsewhere to supplement my income. I also indicated that at times it might be difficult to work overtime at their convenience.

My supervisor's response was that since this was my primary workplace, I would be obligated to work overtime at their convenience and that if I failed to respond to their needs, I could be terminated.

Do I have the right to reject their demands that I work overtime. What legal protection do I have against being terminated in this situation?

--A.H., Los Angeles

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A: Your employer's position is legal under the circumstances. You have no rights that are being violated, nor do you have any protection against termination.

Every employer has the right to require employees to work overtime that the employer deems necessary, as long as the employer pays nonexempt employees the overtime premium to which they are entitled. An employee who refuses to work mandatory overtime is considered insubordinate, and most employers have rules allowing them to terminate such employees.

You seem to be upset about your employer's decision to eliminate overtime, and perhaps rightfully so. However, your appropriate course of action is to find another job that compensates you at the level you believe you require rather than refusing to comply with a directive from your current employer.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.

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