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deduction of salary New York

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  • deduction of salary New York

    My husband has been working for a restaurant for the past 12 years. He gets paid salary and know a new manager deducts the day if he doesn't go to work.
    He doesn't get paid holiday or overtime. I thought the reason for salary was to get paid the same no matter how many hours or days you work. Is this legal? If it's not what can we do about it?

  • #2
    If he takes a day off for personal reasons, it is legal to dock pay.

    If he takes a day off due to illness, it is legal to dock pay IF the employer offers a reasonable number of paid sick days and the employee either is not eligible for them yet or has already used them.

    There are some other legal deductions as well, but these are the most likely based on your post.

    It is not, however, legal to dock his pay if he doesn't work because the employer has closed the business for some reason. So it matters WHY he was not working.

    The above presumes he is an exempt employee. Non-exempt employees do not have to be paid when they do not work.
    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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    • #3
      And to help determine whether or not he is, in fact, exempt, what does he do in his job?
      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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      • #4
        He is a sous chef. They don't get any sick days or personal days nothing

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        • #5
          Sous chefs used to meet the criteria to be considered exempt, but that was a number of years ago when I was in the restaurant industry, and before the changes in the FLSA effective August, 2004. You can contact the state Dept. of Labor to confirm.
          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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          • #6
            so in other words what they are doing is legal. they could do deduct days off and not pay overtime and holidays at the same time.

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            • #7
              An exempt employee may LEGALLY have his pay docked in the following circumstances:

              1.) It is the first or last week of employment and they did not work the entire week
              2.) Their absence is covered by FMLA
              3.) The employer offers a reasonable number of sick days which the employee has either used already or is not yet eligible for, and calls in sick
              4.) The employee voluntarily takes a day off for personal reasons
              5.) The employee has been suspended for a major safety violation
              6.) The employee has been suspended for the violation of a written company policy which applies to all employees and is related to workplace conduct (violence in the workplace, use of drugs or alcohol at work, sexual harassment, etc.)

              These are the ONLY circumstances in which an exempt employee can have their PAY docked. It IS legal to dock their sick, vacation or personal time for any absence.

              There are NO circumstances in which an exempt employee is entitled by law to overtime. They must be paid for any holidays unless they do not work AT ALL in the week in which the holiday falls. However, they only need to be paid their regular salary; they are not entitled to any premium pay for working on the holiday.
              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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              • #8
                thank you so much for your information. Know i understand the situation.

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                • #9
                  Originally posted by yngraf107 View Post
                  so in other words what they are doing is legal. they could do deduct days off and not pay overtime and holidays at the same time.
                  No, I did NOT say that what they were doing was legal. I said that, if he continues to meet the criteria to be an exempt employee, then he doesn't have to be paid overtime. He would, however, have to be paid at least a guaranteed weekly salary of $506.25 AND his salary could not be docked unless for the reasons cbg explained.
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                  • #10
                    can you please explain the difference from an exempt and a non-exempt employee? My husband ask the bookeeper what he was and she told him that she had no idea and she didn't know and how to find out

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                    • #11
                      www.dol.gov/elaws/esa/flsa/screen75.asp
                      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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                      • #12
                        The bookkeeper doesn't know? If I were this company, I'd find a new bookeeper.
                        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                        • #13
                          thanks for the information i will surely go through it carefully, and yes when he asked her she said she didn't know what was that and that she only knew he was getting paid salary.
                          another questions there are other workers there that are also getting paid a fixed salary but get paid the salary. When my husband asked why they were getting paid the holiday if they also get paid salary the manager said that they get paid by shift not salary. Wahat does that mean?

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                          • #14
                            I have no idea.
                            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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