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  • Exempt employee and holidays California

    Hi all,
    I have a question regarding my status as an exempt employee. I am being told that the policy at this company is that I am exempt (so I do not qualify for overtime), but if I work an extra day, I do not get compensated either. The real issue I have, though, is that when the office closes for a holiday (Labor Day, 4th of July, etc) they do not pay me for that day either, even though I am ready and willing to work.

    From what I have read in CA, as an exempt employee, I am supposed to be paid for days the office closes (as long as it is less than 1 week). Am I correct? I would like to confirm before I start investigating this further.

    Thank you for the assistance!

  • #2
    That is Federal law, not CA, so it applies in all states. If you are truly an exempt employee, you cannot be docked for days that the office is closed and you are not able to work; however, in all states including CA, you can be required to take vacation, PTO or other forms of paid leave for that day.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      And here is the federal regulation that details the limited circumstances under which your pay can be docked. However, as cbg stated, that does not preclude the employer from requiring you use other accrued time to substitute for your salary.
      https://www.dol.gov/dol/allcfr/ESA/T...CFR541.602.htm
      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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      • #4
        Thank you, cbg and PattyMD....

        That does help. Although, I am still confused about one thing: When you say "If you are truly an exempt employee..." how would I judge this? I believe that my company is not playing by the rules, so not sure how I would know for sure.

        I have a flat daily rate. A missed day results in no pay for that day. I do not get overtime or compensation if I work an extra day. We do not accrue any PTO, vacation time, etc. No sick time or benefits.

        Great place, huh? So, we basically get paid only for the days we are here regardless if the days we aren't here are for personal or company holiday days.

        Thank you so much for the help! I am just trying to figure out how best to proceed with this issue.

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        • #5
          What are your actual job duties? And what is your industry?
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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          • #6
            I am a department supervisor in the television industry - a privately owned company. I oversee a staff of about 30-40 people.

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            • #7
              If your primary duty is supervision, if you have more then 2 full time equivelant employees reporting to you, if you are paid $640/week CA ($455/week federal), then you are likely Exempt under the Executive exception. But you are also subject to the 541.602 salaried basis docking restrictions.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

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              • #8
                Thank you, DAW. Yes, my primary duty is supervision. The employees who report to me are all non-exempt hourly employees.

                If I am reading the 541.602 salaried basis docking restrictions correctly, I am paid a weekly rate with pay docking for any full day I am not at work for personal reasons, so I believe I fall into this.

                With all that being said, does that confirm that I am legally considered an exempt employee?

                On a side note, a co-worker here is also non-exempt. He is a producer and supervises his productions but does not have any employees who report directly to him. Would that make him not an exempt employee? If so, how does this all apply to him, or should he be considered a non-exempt employee?

                Thank you!

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                • #9
                  The Executive exemption is just one exempt classification. There is also a Learned Professional classification, a Computer Professional classification, and an Administrative classification. If anything, it's likely the co-worker you mentioned could qualify under the Administrative group.
                  I'm guessing this would be the Wage Order that would apply to your industry.
                  http://www.dir.ca.gov/IWC/IWCArticle11.pdf
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                  Comment


                  • #10
                    Based on your description, I am confident that you are correctly classified as exempt. I don't believe we have enough information to make a definite decision on your co-worker, but we have definitely not ruled exempt status out. As Patty says, there is more than one possible classification of exempt status.
                    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                    Comment


                    • #11
                      Thank you both again. I really appreciate this. I think I am starting to piece it all together.

                      So, based on my current exempt status, I should technically be paid for days the office is closed of I am ready and willing to work, correct? Is this something I should bring up with a labor attorney if my employer refuses to comply?


                      Thank you!

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                      • #12
                        For a single day, in CA, I would be more inclined to go with the DLSE rather than an attorney. YMMV.
                        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                        Comment


                        • #13
                          Several points.
                          - Any employee can be non-exempt. Bill Gates could be non-exempt, if Microsoft wanted to go down that road (I would not). Not any employee can be exempt.
                          - We do not know that you are exempt. We know that it sounds very much like you could be exempt. It is the employer's choice. However if they are treating you as non-exempt, then you would be owed for any unpaid overtime. Technically the employer does not have to tell you or anyone else what your exempt status is until/unless the government asks them. Sort of like musical chairs. The music stops and your employer is then forced to pick a chair. I personally think that is a stupid game but there is no rule preventing it. HOWEVER once the employer picks a choice, then they are fully responsible for compliance with that choice. If you never, ever work overtime, then the employer should just say that you are non-exempt.
                          - I agree with Patty that there is more then one possible exempt classification. HOWEVER, if you qualify for the Executive exception, that is by far the hardest of mentioned exceptions to challenge (assuming you are actually a supervisor). Non-stupid employers pick easy exempt classifications, not harder exempt classifications. The other two mentioned are possible, but harder. Classification is frankly complicated and smart employers do not go out of their way to make things even more complicated. I have never worked for any employer who did not use the Executive classification whenever possible.
                          - Agreed with CBG. If we are talking one or two unpaid days, do not mess around with an attorney, just file a wage claim with CA-DLSE.
                          - There is a chance that your employer will claim that you are being paid on a "fee basis" instead of a "salary basis". Not impossible, but also not very likely. There are some really tight rules on fee basis. It is not intended for full time supervisors doing the same job every day. Past that, I am fairly sure that CA does not support fee basis.
                          https://www.dol.gov/dol/allcfr/ESA/T...CFR541.605.htm
                          - There is also a good chance that your employer does not actually have a clue what they are doing. "Never attribute to a conspiracy what can be explained by simple incompetence".
                          "Reality is that which, when you stop believing in it, doesn't go away".
                          Philip K. **** (1928-1982)

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                          • #14
                            Thank you all! DAW - I am thinking this company falls under your last point!

                            As far as the unpaid holidays, yes, it is only a handful of days. We were all considered 1099 employees for quite a while even though we didn't fit the classification of independant contractor, so there may be the issue of back taxes and OT, as well as office closures for which we were docked there as well. Is that all within CA-DLSE's boundaries?

                            This is just one big mess! I really appreciate all your time!

                            Thanks!

                            Comment


                            • #15
                              Originally posted by techiedork View Post
                              Is that all within CA-DLSE's boundaries?
                              Maybe. Depends on exactly which tiny little sub-issue you are talking about. It is not like there is a single government department in charge of worker classification issues. A single misclassified worker crosses many federal and state agency's boundaries. It is more like you have to look at each consequence of the misclassification and see who is responsible for addressing the result. Example:
                              CA-FTB is responsible for CA-SIT.
                              CA-EDD is responsible for CA-SDI and CA-UI.
                              CA-DLSE is responsible for hours worked, minimum wage and overtime.

                              IRS is a more inclusive tax-wise on the federal side. They handle FIT, FICA, FUTA. DOL on the federal side does pretty much the same things CA-DLSE does on the state side.

                              Plus there are federal/state new hire reporting registries. Probably more stuff that I am missing. A whole lot of things are involved when a worker is misclassified.
                              "Reality is that which, when you stop believing in it, doesn't go away".
                              Philip K. **** (1928-1982)

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