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Pay for Deposition Time? California

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  • Pay for Deposition Time? California

    Located in California and specific to California law.

    We have a situation where my company is ingaged in a lawsuit with a former employee. The former employee has requested that 3 of our current employees appear for a deposition.

    Is the company required to pay the employee's going for the deposition as hours worked? Does it make a difference if the time spent at the depostition is within or outside of their normal scheduled work shift?

    I know it would be nice if the company did pay them and it will but is the company required to pay them according to California law?

    Thank you.

  • #2
    Is the company requiring they be at the deposition or is the one suing the company? If the former, then I'd pay it as a good case could be made that it is in service to the employer. If someone else is requiring they go, then it would not be. The fact that one of the parties to the suit is the employer is irrelevant. It certainly isn't time spent in service to the employer.
    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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    • #3
      They are being called to appear for a deposition by the ex-employee.

      Comment


      • #4
        I would be careful with Exempt Salaried employees only:

        29 CFR 541.602.
        3) While an employer cannot make deductions from pay for absences of an exempt employee occasioned by jury duty, attendance as a witness or temporary military leave, the employer can offset any amounts received by an employee as jury fees, witness fees or military pay for a particular week against the salary due for that particular week without loss of the exemption.
        Last edited by DAW; 09-10-2008, 08:41 AM.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

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        • #5
          Time spent at such a deposition is hours worked no matter who summoned the employee or FLSA exemption. The employee is there in his capacity as an agent of the employer and is performing work that is directly arose from his normal duties.

          I would also point you to 29 CFR 541.602(b)(3) and 785.42

          Besides, do you really want to piss off a witness?
          Last edited by TheRed; 09-09-2008, 04:49 PM.

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          • #6
            "Requested" or subpoenaed?
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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            • #7
              The plantiff should be the one paying for the time spent in depositions and reasonable travel. The person may be working but it certainly isn't in service or under the dfirection or for the benefit of the employer. Same as being asked to be an expert witness in an unrelated case.
              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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              • #8
                Thgank you all for your input.

                Comment


                • #9
                  Originally posted by ElleMD View Post
                  The plantiff should be the one paying for the time spent in depositions and reasonable travel. The person may be working but it certainly isn't in service or under the dfirection or for the benefit of the employer. Same as being asked to be an expert witness in an unrelated case.
                  In the case of Exempt Salaried employees only, could you not make exactly the same argument for Jury Duty or Temporary Miltary Leave? Is this the benefit of the employer a real rule with actual support somewhere in the law?
                  "Reality is that which, when you stop believing in it, doesn't go away".
                  Philip K. **** (1928-1982)

                  Comment


                  • #10
                    Except that the law specifically allows for those instances. Giving a deposition is not the same as being a witness in court. One may lead to the other but not always. If I had to guess I'd say because there is no time specification for a deposition, and it can be scheduled at any time and place convenient to the parties, it is treated differently than being an actual witness, juror or soldier. One can not reschedule their deployment because it is inconvenient.

                    There can be any number of time a person is absent that is beyond their control, or at least provides a compelling reason to be out. Unless it is one of the few that the law specifically says the employer must accept, it is up to the employer whether or not they choose to do so.

                    The following is from http://www.dol.gov/dol/allcfr/ESA/Ti...29CFR785.7.htm

                    The United States Supreme Court originally stated that employees
                    subject to the act must be paid for all time spent in ``physical or
                    mental exertion (whether burdensome or not) controlled or required by
                    the employer and pursued necessarily and primarily for the benefit of
                    the employer of his business.'' (Tennessee Coal, Iron & Railroad Co. v.
                    Muscoda Local No. 123, 321 U. S. 590 (1944))
                    the rest of the section goes on the clarify that the employer is free to employ an individual to do nothing at all and actual duties aren't required.


                    And from http://www.dol.gov/elaws/esa/flsa/ot...it_to_work.asp
                    The FLSA defines the term "employ" to include the words "suffer or permit to work". Suffer or permit to work means that if an employer requires or allows employees to work, the time spent is generally hours worked.

                    Thus, time spent doing work not requested by the employer, but still allowed, is generally hours worked, since the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done. This time is commonly referred to as "working off the clock."
                    emphasis mine.
                    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


                    • #11
                      Originally posted by DAW View Post
                      In the case of Exempt Salaried employees only, could you not make exactly the same argument for Jury Duty or Temporary Miltary Leave? Is this the benefit of the employer a real rule with actual support somewhere in the law?
                      Curiously enough, FLSA doesn't define hours worked except to exclude certain activities and to include "suffered or permitted". There has been language in case law included in the regs that loosely defines work as under control of or required by the employer and for the benefit of the employer's business, but that is hardly a complete definition of all hours worked.

                      Comparing salary basis rules to hours worked rules is not really an apt comparision as the two really don't have anything to do with each other, with the sole exception of figuring when work was done to allow docking. the jury, witness, and military leave exemption strikes me as more as a public policy rational rather then a hours worked rational.

                      More revealing is the reg 785.42 which makes time spent on grievence disputes hours worked, which certainly isn't for the "benefit of the employer" as the term is used by some posters here.

                      Comment


                      • #12
                        There are no exempt employees involved. Of the three employees, one is full time days, one is part-time days and the third is part-time nights. The owner of our company has instructed me that if the employees miss actual work time and are not paid by the ex-employee or his attorney, the company will pay them for any time missed.

                        Comment

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