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Exempt Status in California? California

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  • Exempt Status in California? California

    My question isn't so much whether or not my fiance is considered exempt or not. Her employer considers her exempt even though her job description is not an exempt employee. That is another issue.

    My question is if her employer considers exempt and gave her a 90 probation period, can they continue to extend the 90 days without telling her and without her permission for as long as they want? They continue to deduct hours from her pay check when she leaves early, even like 1 hour early. They say because she is still on probation they can do that. Can they loop around the law like that?

    She is a front desk receptionist at a medical office. Her boss would not tell her for days if she was exempt or not when she asked and finally told her last week. Then all of a sudden, she was given written warnings (today) after insisting on meeting with management. They are going to retaliate on her because they know they are breaking the law in some way.

  • #2
    Let me ask you a question. In what way is she being treated as if she's exempt? I'm going for something specific here.
    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
      Agree with cbg's question. He can't just call her exempt. Why is he treating her as exempt? How is he treating her as exempt? Thanks.
      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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      • #4
        She shouldn't be exempt but they said she is exempt. They have instructed her NOT to keep track of time and have not given her any means of tracking her time, she is paid in salary, her pay stub shows "salary" not hours, her boss told her that we do not pay you overtime if you worked overtime, her base salary on her pay stubs are the same pay check to pay check unless she misses days. However, if she leaves work early they DO deduct hours from her day! When she questioned that they said because she is still on her 90 day "probation" and not permanent yet. She passed her 90 days over a month ago. They are getting the best of both ways, they don't pay her OT and they deduct hours when she leaves.

        I understand that she is not and should not be considered "exempt" but they have stated that she is and pay her that way except for the deduction of hours. I also know that probation has nothing to do with it and they still have the follow the laws which I guess they are not. They are not happy that she is questioning management about this and she is getting resentment from her manager now.

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        • #5
          The chances that a receptionist is Exempt under the federal FLSA law is slim and none.
          - The employee should start keeping track of their own hours at home. Pen and paper work just fine. There is NOTHING they can do to force the employer to keep track of their time.
          - "Salary" is just a payment method. Many/most Exempt employees are legally not paid on a salaried basis and many employees (like receptionist) are paid on a salaried basis and are still non-exempt.
          - The employer is likely deliverately playing games. They likely already know that they are breaking the law. The only real cure for a bad employer is to find a good employer somewhere else, then drop off the wage claim with CA-DLSE on the way out the door.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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          • #6
            To pick a nit, even though her job description says receptionist duties, what does she actually do? JD or titles do not matter, only her duties do.

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            • #7
              Agreed. Exempt status is a function of looking at all job duties and sometimes the nature of industry. But if an employee is mostly doing receptionist duties, then any argument that they are Exempt would be a very uphill struggle. Receptionist duties per se are non-exempt, so there would have to be something significant in their remaining job duties to over weigh that. Say a brain surgeon who answers phones when she is not cutting.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

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              • #8
                Possible but unlikely. My SIL was an Office Manager who also served as the Receptionist for a medical practice. She qualified as exempt.
                I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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                • #9
                  Sure, although an "office manager" is also not necessarily Exempt. DOL has vastly tightened down the Administrative exception, and unless the rather low bar standards of Executive are meet, then Exempt becomes problematic, especially if a lot of time is spent doing clearly non-exempt work such as reception. But the title per se is meaningless, just the actual job duties and sometimes the industry. A lot of people who 10 years ago DOL would have considered to be Exempt under the Administrative exception would no longer be considered so, even though the formal rule has not changed, just DOL's interreptation of the "The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance" clause. Someone who does reception most of the time fails the primary duty part of the test, but even if they are a part time reception, we still have to fully meet the second half of that test.

                  I have included a pointer to the so-called White Collar exceptions.
                  http://www.dol.gov/whd/regs/complian...a_overview.htm

                  This is discussed in the DOL's Field Operation Handbook, section 22c in more detail.
                  http://www.dol.gov/whd/FOH/FOH_Ch22.pdf
                  "Reality is that which, when you stop believing in it, doesn't go away".
                  Philip K. **** (1928-1982)

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                  • #10
                    In her case, she really was exempt, she just also covered the desk, which was not her only/main duty. Not a common situation but it does happen.
                    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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