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Salaried, non-exempt worker shorts hours, how do I get those hours back? California

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  • Salaried, non-exempt worker shorts hours, how do I get those hours back? California

    I have a 40 hr per week salaried non-exempt worker who has consistently shorted her week over this quarter, to the tune of 43 hours missed. We are just now discovering this (don't get me started on why we're just now dealing with this).

    Here are my questions:

    1. Do I face any sort of legal issues if I drop her from salary to hourly? She's non-exempt.
    2. Do I have any legal way of getting those 43 hours back (eg: force her to file against her PTO stockpile)?

    I know I can't have her "make up" the hours, as it would put her in an overtime situation and I'd have to pay her overtime for those 43 hours, effectively double-paying her (plus some!).

    Thanks in advance!
    Last edited by GBRJMS; 06-12-2013, 05:49 AM.

  • #2
    I can answer the first question. Yes, you can switch her going forward to hourly. I am unsure if CA requires a certain length of notice for that type of change but it is allowed.

    I read your other question as well and I think the best answer is to chalk this up to a learning experience and let the hours go. First, someone should have been monitoring her hours and spoken to her earlier than the last month of the quarter. Second, this is the exact reason why putting non-exempt on salary is a bad idea. The only good reason for the company is it simplifies payroll (assuming no OT) but the company loses out when the employee doesn't work their set hours.

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    • #3
      Thanks HRinMA!

      I am hoping that a CA HR person can chime in as well. Really need to figure out if I should drop the rope on question # 2, or force the PTO withdrawal. The ability to use PTO in this case is key, because all leave in CA is considered wages and should she leave, she can "cash it out".

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      • #4
        Our CA expert has not been around lately. Hopefully someone else can chime in.

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        • #5
          On a going forward basis, you can force the use of PTO for any time she doesn't work. That's what PTO is for.

          I'm not sure whether CA will allow you to retroactively assign PTO to this time. It's been a long time since I managed leave time in CA. If you don't get a definite answer here, you can call the 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.

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          • #6
            What does your current PTO policy allow for paid timeoff? Do you require employees to take a certain length? That is, do they have to take a block of PTO (say 4 or 8 hours)? Many times employers define a minimum block. Do you have one? What is it?

            If it is taken on an hourly basis (rather than a 1/2 day or full day), I don't see an issue with docking it since in all reality that is what she did. She took unrequested PTO rather than work the hours assigned. However, make sure she didn't request the time from her supervisor/manager and get the "ok" from them. If your basis is longer, and she took shorter time, I am not sure you could go back and sum them together to get the time back without the employee's permission. I would check with the DLSE to see if she could voluntarily have that PTO docked (rather than a different consequence such as losing her job).

            That said, you know you have some management issues that it took that long to notice she wasn't working the hours assigned. You didn't say if you disciplined either the manager responsible for her or her. Did she report her true work time or one that was manipulated to look like she worked the correct amount of hours? If I at all felt there was collusion between the two, I am not so sure I would keep either one of them. Because in reality it is theft. But I tend to be pretty hard-lined if it was not truly a mistake (that someone without authority made).

            And this is one reason why we pay all non-exempt employees on an hourly basis. Even then there are ways to steal time unfortunately.

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            • #7
              PTO is taken in currently 4-hour increments.

              The employee faithfully reported her actual worked time. We're a super small consulting firm (7 employees), and this is an honest employee. She has other issue relating to time management. But there is no collusion on the part of her and her manager. Ignorance, yes. But she brought the issue to her manager's attention and has been trying to find ways to "make it up". Her manager took the eye off the weekly hours ball (we've been utterly slammed with client business, and I understand how that oversight can happen), and now we're in recovery and this won't happen again.

              OK, so in her case she's off by 43. So can we dock 40 (10 increments of 4) and toss the other 3 away?

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              • #8
                What increments did she actually use? If not 4 hours, i doubt you can can legally retro dock.

                You could possibly have her accrue at a lower rate or zero going forward until that 43 hours is madeup. Because CA does allow you to cap accruals. So you might consider that.

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                • #9
                  I have no idea what increments she used. It was just an hour here, and 2-3 hours there.

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