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Non-exempt coming late/working over California

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  • Non-exempt coming late/working over California

    Hi, I have three issues I'd love a little clarification on. Thank you in advance for helping!

    1. I'm a non-exempt hourly employee, and a manager. I am scheduled to work 6 hours per day, from noon-6pm. I frequently come in around 12:25pm, and stay until 6:25pm. My HR department has been deducting my late time from my allowed unpaid personal time off, despite the fact that I am still working the entire 6 hours. Why can they do this?

    Similarly:
    2. I am allowed to "trade" a shift with myself during the same week, i.e. take a Tuesday off (for which I am scheduled), and work a Friday instead. However, unpaid personal time off hours are still deducted for the day I am taking off. Why is this possible if I am still completing my hourly requirements during the same week?

    Same co, different issue:
    3. Two or three years ago, I found out that, for approximately 1 year, I was not being paid past 6pm, despite punching out exactly 6 hours from the time I punched in. When I discovered this, HR said employees do not get paid for any time over 6pm without a written explanation accompanying the punch on the time clock. I mistakenly assumed it was clear that I was working the entire 6 hours - since it was going on for over a year - and that my time sheet would adjust accordingly. Am I entitled to back pay, or is it just my mistake? And even if I am entitled to the pay, is there a statute of limitations?
    Last edited by bookgirl; 03-15-2010, 03:30 AM.

  • #2
    1. If you are nonexempt, they can't. 25 minutes is a substantial period of time which must be paid for.
    http://www.dol.gov/dol/allcfr/ESA/Ti...9CFR785.13.htm

    2. This IS legal, because you are taking a scheduled day off. The fact that you are making up the time on a different day is irrelevant. You are getting paid for the hours you work PLUS the paid time off being charged, correct?

    3. The DLSE will take claims up to 3 years from the date of the violation.
    http://www.dir.ca.gov/dlse/HowToFileWageClaim.htm
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

    Comment


    • #3
      Originally posted by Pattymd View Post
      1. If you are nonexempt, they can't. 25 minutes is a substantial period of time which must be paid for.
      http://www.dol.gov/dol/allcfr/ESA/Ti...9CFR785.13.htm

      2. This IS legal, because you are taking a scheduled day off. The fact that you are making up the time on a different day is irrelevant. You are getting paid for the hours you work PLUS the paid time off being charged, correct?

      3. The DLSE will take claims up to 3 years from the date of the violation.
      http://www.dir.ca.gov/dlse/HowToFileWageClaim.htm

      Patty,

      On #1 it sounds as if she is getting paid her full 6 hours but the 25 minutes she is late is being deducted from her PTO balance. If she is being paid PTO for those 25 minutes (which she is late she says she is scheudled to work at noon) is this still illegal?

      Comment


      • #4
        No, GS, that would not be legal. California law prohibits the decrementing of vacation/PTO unless the time is actually taken or paid out (since CA law states that vacation is immediately vested as earned and is not forfeitable). It cannot substitute for pay for time worked. I completely missed that.
        Last edited by Pattymd; 03-15-2010, 06:04 AM.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          I would like to point out, however, that whatever the legalities of the use of PTO time, the fact that the employer has been doing so indicates that they are unhappy with the OP coming in at 6:25 instead of 6:00, even if she does make up the time at the other end of the shift. They can, and it will be 100% legal in all 50 states, fire her for coming in 25 minutes late, even if she makes up the time, even if she's a manager, even if she's been doing it before, and even if just about anything you can think of barring a bona fide contract or CBA that grants her the right to do so.
          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
            Thank you all so much for replying. I am clearly in the wrong for being late, and know I can be fired for it. This is for my own edification.

            Originally posted by Pattymd View Post
            No, GS, that would not be legal. California law prohibits the decrementing of vacation/PTO unless the time is actually taken or paid out (since CA law states that vacation is immediately vested as earned and is not forfeitable). It cannot substitute for pay for time worked. I completely missed that.
            Thank you, this seems to be the case, but perhaps I can add a clarification, which may or not make a difference.

            Our allowed time off is structured to include both time which we may take off and still be paid (Paid Vacation), and also a number of hours which we may take off and NOT be paid (Unpaid Personal Time).

            I was being deducted my allotted unpaid personal time until it ran out. (I am not losing money, because I am working the full shift, I am merely losing the time a this point).

            However when that ran out, HR began deducting my paid vacation. As I understood it from payroll, out of a 6 hour shift, I am being paid 5 hours and 40 minutes of wages, and 20 minutes of paid vacation time. This is substituting paid vacation time for time worked, as mentioned by Patty above, correct?

            I realize I am in a bind: I am clearly in the wrong for being late, and HR is doing something illegal, however I cannot complain for risk of being fired. (I would probably fire me, too, if I wasn't so amazing at my job My point is moot. I am, like I said, only wanting to clarify my situation.

            Patty, could you perhaps refer me to the specific labor code that mentions the above? I took a look through the labor.ca.gov listings, but am still unclear on exactly which sections are relevant.

            Comment


            • #7
              ..........

              California Labor Code 227.3.
              Unless otherwise provided by a collective-bargaining agreement, whenever a contract of employment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination. The Labor Commissioner or a designated representative, in the resolution of any dispute with regard to vested vacation time, shall apply the principles of equity and fairness.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)

              Comment


              • #8
                Having said all this, however, they CAN charge your vacation/PTO for the 25 minutes (or whatever increment the policy provides for) for your missed 25 minutes. But they would still have to pay you for the 6 hours worked from 12:25 to 6:25.

                cbg, has the bottom line, though, you're late for your shift; apparently, often. Either try to change your shift start time or make arrangements to be there on time, then the problem goes away.
                I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                Comment

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