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non-exempt in CA confusion California

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  • non-exempt in CA confusion California

    I've reviewed the discussion threads and the labor law (which is not an easy read) to find clarification to an issue. I recently found out that for the past year my employer has been charging my vacation time for time used for doctors visits and or absences of just an hour without my written consent. I was not aware that my time was being used for this, I am salaried (non-exempt I believe) and do not have a time card, my pay is the same each period, and there is no notification of alternate (sick/vacation) time showing on my pay stub. I am alarmed because I work overtime of 30 to 60 minutes almost every day, for which I am not compensated.

    #1 question is : If they are docking me for late or out of office partial days, shouldn't they also pay me for all overtime worked?

    #2 : If I am exempt, is it any partial day or partial days of 4+ hours that can be applied towards benefit pay? One part of the law files state any time worked in a day counts as a full day, another part says 4 hours, and another place partial days ok...thats confusing enough.

    #3 : I was also paid out of my vacation time for leaving 15 minutes early for a workers comp doctors appointment (not the initial) without my consent. Is this legal?

    Thanks for help with clarification!

  • #2
    Generally speaking, the employer doesn't need your "consent" to charge your PTO bank for missed time. The Conley decision, IMHO, does not prohibit charging PTO banks for less than 4 hours. There are a number of good discussion of this elsewhere in this forum; I don't have time to search for them at the moment. But the laws do, in fact, appear to contradict themselves. However, Conley also, if I remember correctly, did not address usage of PTO time in LESS than 4-hour increments. So, this exact situation may have to be litigated again.

    My recollection is that FWW and Belo-type plans are not allowed in California. in which case, "salaried" has no impact on your pay situation.

    If you are nonexempt, records of your hours MUST be kept under the FLSA.

    If you are exempt, there is no such requirement under the law and you never have any expectation of additional pay no matter how many hours you work.

    So, as you can see, the determination of exempt vs. nonexempt is critical to the overtime pay question. Have you asked why you are not receiving overtime pay? Is the employer claiming your job, as you perform it, is an exempt position?
    Last edited by Pattymd; 02-20-2008, 02:43 AM.
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    • #3
      Originally posted by Pattymd View Post
      The Conley decision, IMHO, does not prohibit charging PTO banks for less than 4 hours.
      Note the following excerpt from the Conley decision

      The term "partial-day absence" is overbroad in the context of this case, because appellants do not contend, and the record does not indicate, that PG&E imposes either pay or leave bank deductions on exempt employees for absences lasting less than four hours in a single work day. We use the term only for convenience, and do not intend it to include an absence of less than four hours

      You can access the entire, Conley, court decision here http://caselaw.lp.findlaw.com/data2/...es/a105832.pdf
      Barry S. Phillips, CPA
      www.BarryPhillips.com

      IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

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      • #4
        ok, however if they are keeping "track" of my hours to the point they deduct time missed, are they then also required to pat ot for hours over 8/40?

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        • #5
          If you're exempt - no. If you're non-exempt - yes. It's important to know which you are.
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