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Exempt Status - Docking Sick Pay - California

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  • Exempt Status - Docking Sick Pay - California

    I work in an accounting department. Our positions are both exempt, though at the time the company started, they were non-exempt. No one reports to us. We have no autonomy. We can recommend certain courses of action, but the final decision is left to our supervisors. Our work is double checked and verified by these same supervisors. We have to work a minimum 40-hour week. We report to three managers, by the way - Treasurer, Controller and CFO. On average, we work a 10 hour day. I have personally worked the last three holidays and had to fight to be able to use them in lieu of vacation.

    I should also note that our positions (Accounting Clerk and Finance Analyst) were made exempt specifically because prior management did not want us to abuse overtime. The HR manager voiced no concerns over this decision. The thought process was that if overtime was available, we would work slower in order to get overtime pay. Yes, they trust us that much. In the time since our positions were created (at start-up in 2007), the job descriptions have never changed, no annual reviews have been done of any position, no salary review has taken place. The Accounting Clerk position, which was non-exempt, covered Receivables, Payables and Payroll. We now have a temp handling Payables. She is paid hourly. My co-worker handles Payroll and I am in charge of Receivables, Fixed Assets and "projects as deemed necessary". As stated previously, all of our worked in verified and questioned. They track our time based on security gate entry and departure. Our temp is working, on average, 48 hours per week.

    As of Friday, they want to deduct on an hourly basis from our sick time any time taken for doctor's appointments. I am a Type II Diabetic with Fibromyalgia and Chron's Disease. Due to the amount of stress and the hostile work environment we have suffered with, my conditions have worsened requiring more frequent visits to the doctor. I would like to add that during the first three weeks of this year, all time off for doctor's appointments was forbidden due to year end close. My co-worker was placed on a week-long medical leave due to exhaustion.

    I know the first thing many will say is "leave, find another job". If I leave before December, I will loose my company paid pension, which amounts to more than $50,000. I support my families benefits, and my Cobra payments due to my medical conditions would be over $1,000 per month. I simply can't afford to leave. I was out of work for 2 years (2006-2008), I can't go through that again.

    We don't really have an HR department. We have a labor law attorney that looks out for the Company and nothing more. He was hired specifically to deal with the Union, as the industry we are in is 95% unionized for mill wage workers.

    So - two questions really - Are we really exempt? If we're required to work 40 hours a week, and we do, can they still deduct from our sick pay if we work in excess of 40 hours counting the time off for doctor's appointments?

  • #2
    1.) Not enough information to say
    2.) Yes. Regardless of whether you are exempt or non-exempt, your employer may legally deduct from your sick pay if you miss time for doctor's appointments no matter how many hours you have worked.
    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


    • #3
      You cannot really mix two different jobs togehter and expect to get a single answer for both jobs. Let my start with the obvious. There are something like 100 or so Exempt classifications under federal law (FLSA), somewhat fewer under CA law (CLC). The normal starting point are the so-called federal "White Collar exceptions", which are a few of the more common Exempt classifications. Based solely on what you have said, most of the exceptions will not work. Administrative might work, or it might no. I am going to include a pointer to the federal rule set, which is a bit easier to follow then the CA set. If you fail the federal set, you also fail the CA set. The reverse is not true. It is possible to be Exempt under the federal rules but not Exempt under the CA rules.
      http://www.dol.gov/whd/regs/complian...a_overview.pdf

      Just to be very clear, legally you and this other worker are two different unrelated people. However the employer treats this other worker legally has NOTHING to do with how they treat you. Or visa-versa. So you need to read every word in the Administrative factsheet, and see how YOUR job duties and treatment match up. Then unrelated to that, someone needs to do the same thing for this other person. However, if I read this corectly, the other person is being paid on an hourly basis and that by itself would cause the Administrative exception to fail for this other person.

      I am not saying that Hourly=non-exempt or Salaried=Exempt. That is legally not true. I am saying that based on what you have said NONE of the White Collar exceptions apply to this other person, but the Administrative exception only MIGHT apply to you.

      If you do nothing else, start keeping track of all hours worked at home. Paper and pencil work fine. Do not tell anyone, ESPECIALLY the other person what you are doing. Do not use your employer's facilities or equipments to keep track of your time at home. Assume that anytime you use your employers email that they are reading a copy. Same for phones and internet access. Your statement implied that after December you could file a wage claim. We still have not determined that a violation has occured, but keeping track of your hours is your starting point. Along with keeping VERY quiet.
      Last edited by DAW; 07-09-2012, 05:34 AM.
      "Reality is that which, when you stop believing in it, doesn't go away".
      Philip K. **** (1928-1982)

      Comment


      • #4
        I looked at the link for the DOL, and here are my responses:

        • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week; (Yes)

        • The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (Yes)

        • The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. (No - never. I need to get approval for just about everything)

        As I said, I can make recommendations, but I can't arbitrarily decide on, or sign for, anything. Also, when I'm on vacation, I'm basically on call and I have to take my laptop and Blackberry with me. They don't pay for a WiFi card. I have to find a WiFi location when they call me. The sick time deductions is just one more way to stick it to the working women in the office as we have to take time off for family members. We also report to a CFO who is here on an H1B visa. He is from Korea and thinks our labor codes are too "employee friendly". What recourse, if any, do I have at this point?

        I would also like to mention we don't have an employee manual. We have some policies, some even noting "Draft", that were given to us when we were hired on permanently. They avoid putting anything in writing as they will be legally bound to it then.
        Last edited by concord65; 07-08-2012, 05:32 PM.

        Comment


        • #5
          If you believe that you are misclassified, the appropriate regulatory agency to contact would be the CA DLSE.
          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


          • #6
            CA minimum salary for the Administrative exception is $640/week, higher then the federal requirement. CA duties and other tests are similar to but not identical to the federal rules. The only really good way to research the CA Administraive exception rules is to use the CA-DLSE manual, which is a large PDF that can be downloaded. The Administrative exception takes up an entire chapter. The last issue is that you will bring one set of facts and the employer will likely bring a different set of facts. There is no certainty that CA-DLSE will necessarily believe your facts (or the employers for that matter). CA-DLSE is used to everyone telling them tall tales.

            Past that, what CBG just said. You file a wage claim, you tell your story, and it works or it does not. No sure things.
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)

            Comment


            • #7
              Also, just to reiterate, the docking of sick pay for doctor's appointments is legal regardless of your status and regardless of how many hours you have worked. If you are exempt, then there is no legal significance to 40 hours; if you are non-exempt, the only significance is that Federal overtime rules kick in at that point. Under no law, Federal or state, in any state, is an employer prohibited from applying paid leave of any kind once an employee of any status has worked x number of hours in the week.
              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


              • #8
                Originally posted by concord65 View Post
                I looked at the link for the DOL, and here are my responses:

                • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week; (Yes)

                • The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (Yes)

                • The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. (No - never. I need to get approval for just about everything)

                As I said, I can make recommendations, but I can't arbitrarily decide on, or sign for, anything. Also, when I'm on vacation, I'm basically on call and I have to take my laptop and Blackberry with me. They don't pay for a WiFi card. I have to find a WiFi location when they call me. The sick time deductions is just one more way to stick it to the working women in the office as we have to take time off for family members. We also report to a CFO who is here on an H1B visa. He is from Korea and thinks our labor codes are too "employee friendly". What recourse, if any, do I have at this point?

                I would also like to mention we don't have an employee manual. We have some policies, some even noting "Draft", that were given to us when we were hired on permanently. They avoid putting anything in writing as they will be legally bound to it then.
                While the bolded part of your post may be true in your office, many men take time off for family. My company has the same policy for both men and women.

                Comment


                • #9
                  Keep in mind that getting approval is does not mean you don't exercise independent judgement. Heck even most CEOs must answer to a Board or shareholders. Very few employees have total autonomy to do as they want.

                  There is no legal requirement for an employee manual at all. My employer doesn't have one and we have over 8100 employees and very well defined policies.

                  While I sympathize with being connected to the office when on vacation and off for other reasons, it is far from uncommon and there is no legal requirement for your employer to buy your phone or pay for wifi.

                  As long as the sick time deductions apply to both men and women, it is legal and it is up to your own household to decide how to divide up those duties. It certainly isn't your employer's fault if you feel you carry the burden on taking time off for family matters.
                  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.

                  Comment


                  • #10
                    Originally posted by ElleMD View Post
                    While I sympathize with being connected to the office when on vacation and off for other reasons, it is far from uncommon and there is no legal requirement for your employer to buy your phone or pay for wifi.
                    Actually this is CA we are talking about and CLC 2802 does require reimbursement of work related expenses. HOWEVER, there is a burden of proof on the employee to show that the only reason that the expenses were incured was employer requirements. Most people carry cell phones and unless you can PROVE that you would never, ever carry or own a cell phone for any reason unless your evil employer forced you to, most judges or ALJ's would not be very impressed that you feel burdened by having to carry (or answer) YOUR cell phone. That dog has been repeately tried out in court and has failed to hunt. If you were non-exempt, then actually having to use the phone on company business is hours worked, but having to carry the phone (and answer it) is legally nothing, even if you are on vacation or on a hot date or asleep.

                    Now if you can show that the employer is making you incur additional costs, you have a potential argument. The key is that pretty much any argument anyone can make has already been made, and decided. And judges/ALJ are likely to decide in exactly the same way as the last hundred thousand similar cases were decided.
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

                    Comment

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