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Question about lunch hour, logging vacation time in California

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  • Question about lunch hour, logging vacation time in California

    I apologize if this is confusing.

    I am an exempt, salaried, professional in California.

    I work from 8:30 to 5:00. We have an hour lunchbreak. So, I only "work" 7 1/2 hours a day. My boss explains this by claiming that he is paying for half of my lunch hour, and the other half is unpaid?? We are allowed to take our lunch hour from 11:00am until 2:00pm.

    If I leave at 4:00, I deduct either 1 hour of sick leave or 1 hour of vacation time.

    However, if I leave at 1:00pm, and I have not taken my lunch, my boss claims that I must take 4 hours of vacation or sick leave.

    I argued that I should not be required to take vacation or sick leave for 30 minutes of that time since it should be my lunch hour.

    Can I be required to take vacation or sick time for my lunch hour (or half hour as the case is here)?

    Am I required to take vacation or sick leave in increments under 4 hours?


  • #2
    There are two very different sets of laws in play here.
    - "Exempt" and "Salaried" are mostly a function of the federal FLSA law. Lunches are a meaningless concept for Exempt Salaried employees, at least as far as the feds are concerned. You are saying things like My boss explains this by claiming that he is paying for half of my lunch hour, and the other half is unpaid?? The feds would not agree with this statement. The feds would say that an Exempt Salaried employees are paid their salary irregardless of hours actually worked, and that there legally (under federal law) is no such thing as lunches (paid or otherwise) for Exempt Salaried employees.
    - The feds also consider vacation/PTO to be a legally meaningless concept. The feds do not consider sick pay per say to be meaningless but it does not mean anything useful in context of your question.
    - HOWEVER, CA has it own laws, the California Labor Code (CLC). These laws are in addition to the federal law, not instead of.
    - CA has an "employees must take lunch" rule, but Exempt Salaried employees are explictly excluded from this rule.
    - Sick pay and sick pay balances are legally nothing in CA.
    - Vacation/PTO however is legally vested in CA (unlike the feds). The 4 hour deduction MAY be violating CA rules, or it may not. The problem is that CA-DLSE has gone out of it's way to be unclear on this point. I can cite the related paragraph from the CA-DLSE manual, but the situation is more complicated then indicated. Short answer, file a wage claim with CA-DLSE for the docked vacation. It works or it does not. CA-DLSE does not care even a little bit for anyone else's opinion on this matter.

    51.6.15 Any Work Performed In The Time Period Will Preclude Reduction Of The
    Salary. If an exempt employee performs any work during the work day, no deduction
    may be made from the salary of the employee as a result of what would otherwise be
    a “partial day absence.” (See discussion at Section 51.6.8 of this Manual; also see O.L.
    2002.04.08). However, on June 21, 2005 the First District Court of Appeal, Division 2,
    decided Conley v. PG&E. One of the issues decided was whether an employer can
    deduct for partial day absences of four hours or more from an employee’s vacation pay
    bank, when the employee is salaried exempt. The court held that under the facts of
    PG&E’s vacation pay policy, where the company only deducted for absences of 4 hours
    per day or more, there was nothing in California law which prohibits this practice. This
    enforcement policy is consistent with that of the U.S. Department of Labor. (See, Wage
    and Hour Division, U.S. Department of Labor, Opinion Letter dated July 21, 1997).
    The same rule would apply in a situation where an employer has chosen to close his or
    her business or otherwise failed to provide work for a full week, the exempt employee
    is entitled to recover wages for the full week if that employee is suffered or permitted
    to work anytime within that workweek.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)