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Unpaid Time Off vs. Auto-PTO Docking California

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  • Unpaid Time Off vs. Auto-PTO Docking California

    Searched high and low for information re: this on the interweb, to no avail.

    I am a non-exempt Exec. Asst. for a non-profit in the state of CA. The benefits here re: PTO are in the all-encompassing PTO Bank format, meaning all Holidays, Sick Time, Personal Time and Vacation Time come out of one bank.

    My concern is this: On days when I work LESS THAN 8 hrs. per day, my employer is automatically, and without my permission, consent or agreement, deducting the reminder (usually .5 or .75 hrs.) from my PTO bank. For instance, if I get a call that my son is sick at his after-school program, and I have to leave work an hour early, shouldn't that simply be categorized as "Unpaid Time Off"?

    Is this legal? My PTO accrual rate is already auto-decreased if I work less than 40 hrs. per week, so isn't this, in a sense "double-dipping"?

    I am interesting in knowing if there are any CA/federal rights re: Unpaid Time Off, i.e. Does an employee have the right to request or take unpaid time off with an employer's approval or consent? What would the law be if my employer did NOT offer a PTO policy, and there was nothing to draw from? Would I be fired? Could I be fired?

    I am also required to have somewhat frequent working lunches, at business meetings, board meetings, etc. It's "understood" that I am to fetch lunch with little or no advance warning for various exec. meetings, which is fine, but if they also serve as my lunch periods (where I am working but simultaneously literally having lunch as well) should they not be paid under CA law? Often, it's simply ridiculous (and oft impossible) to go out in the pouring rain, pick up lunch for a meeting, return to the office, and then leave again to take my own lunch, esp. considering that I serve as back-up for the receptionist and report to the incessant demands of three c-level executives.

    I love my job. I'm not complaining. I just want to be paid for working lunches, which is fair and lawful, it seems, and not be penalized (by way of having auto-PTO deductions) for days when I work 7.5 hrs. as opposed to 8 hrs.

    Pls. advise. Thanks, and pls. forgive my lack of brevity.

  • #2
    California vacation/PTO is much more highly regulated than any other state and, for some reason, I'm remembering that this can't be done in California (my memory might be failing me, though. ) DAW may know more about this.

    As a nonexempt employee, your meal period must be at least 30 minutes of uninterrupted time; if it is not, then the entire meal period must be paid. Picking up lunch, attending mandatory meetings, even if eating during such meetings, is all compensable time.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      Great. Thank you!

      Any links/excerpts to actual state law re: those two points would be hugely appreciated.

      Comment


      • #4
        If I recall correctly, it is only for exempt employees that CA law limits the employer's ability to force FMLA for partial day increments.
        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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        • #5
          Which means?

          That despite the fact that technically the PTO, once accrued, is considered a wage, the employer, under CA law, can do with its non-exempt employees' PTO whatever it wishes to do?

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          • #6
            "Unless the employee is relieved of all duty during the entire thirty-minute meal period and is free to leave the employer's premises, the meal period shall be considered "on duty," counted as hours worked, and paid for at the employee's regular rate of pay. "

            http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm

            The PTO issue is complicated, because there are several unrelated laws in play. I am going to assume that you are paid on a Salaried basis, but it really does not change the answer if you are paid Hourly. The key is that you say you are Non-Exempt.

            Let's say that Bob is Non-Exempt Salaried and is paid $1,000/week. Under federal law only, Bob must be paid overtime for hours worked past 40 in the work week but may be docked for any base hours not worked. If Bob only works 35 hours, then Bob can legally be paid $875 for the week. The related federal regulations are 29 CFR 778.113 and 778.306. CA follows these particular federal rules.
            http://www.dol.gov/dol/allcfr/ESA/Ti.../Chapter_V.htm

            However PTO is not a federal issue but rather a state issue. Patty is concerned about possible applicable of the Conley decision. That decision is specific to Exempt Salaried employees only. You can learn more then you want to about CA-DLSE's reaction to that court decision in their Manual.
            http://www.dir.ca.gov/dlse/Manual-Instructions.htm

            However your question is specifically related to PTO handling for a Non-Exempt employee. As long as the employer is paying you for vacation taken, that action is in compliance with CA law.
            http://www.dir.ca.gov/dlse/FAQ_Vacation.htm

            If I am reading your question correctly, you want your employer to pay your salary in full without reducing your PTO even though your are missing base hours, are a Non-Exempt employee and your employee is under no legal obligation for paying you not to work. That you wished to be paid twice for exactly the same hours, once when you did not actually work the hours, and then you want to be paid a second time when you take vacation. Is this correct?

            ------

            Not your question, but Exempt Salaried rules can be quite different. That is a different set of federal regulations (29 CFR 541.602) and the infamous Conley decision has altered the rules in CA for Exempt Salaried employees only.

            Many people think that "Salaried" by itself means something, when legally it is just a payment method. It is fairly common for people to confuse the legally unrelated Exempt Salaried and Non-Exempt Salaried rules.
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)

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            • #7
              I am an hourly employee. I get paid for hours worked.

              And have no interest in being paid for 40 hours if I've only worked 37.5, nor have I ever been paid for hours that I haven't worked.

              The 40 hours are something I am merely technically scheduled for, but I am most definitely not a salaried or exempt employee. (41% of the days I've worked whilst in this position have been days worked with overtime, additionally.)

              I have, however, had numerous and frequent working lunches that are NOT paid, i.e. I am, in fact, working "through" my would-be lunch hours, but because I am "required" by law to take a lunch break, I note a half-hour break on my manually written timecard and "suck it up", so to speak.

              So: If I work 35 regular hours during a work week, I expect to be paid for 35 regular hours of work, not 35 hours of regular work PLUS 5 hours of "PTO". Also, I expect that my PTO will accrue proportionate to hours worked, not necessarily scheduled hours. I expect to accrue PTO in my PTO bank for the 35 hours worked and NOT to have 5 hours from my PTO bank removed for the 5 hours I did not work.

              Comment


              • #8
                Lunch and PTO are wildly unrelated issues.

                For PTO only. Then assuming you are Non-Exempt Hourly, you must be paid for actual hours worked under both federal and CA rules. Under CA rules only (because federal does not care) you cannot have your PTO balance reduced without having those hours separately paid for. If your employer is reducing PTO balance without actually paying for them, then you can file a wage claim with CA-DLSE. If your employer is not paying you for actual hours worked (different issue), you could file either federal or state wage claims because both sets of those laws would have been violated. Just be very clear on exactly what you are claiming, because failure to pay for actual hours worked and the employer illegally forfeiting earned vacation balances are legally two very different things.

                For lunch only. We have several sets of laws. The weaker law is the federal law. You cannot be docked for lunch time unless you actually do no work during that time. Federal rules do not require that lunch be taken, or that you are allowed to leave the worksite, but do consider lunch time to be time worked unless the employee is completely relieved of all duty. CA rules are a lot more restrictive. For one thing, CA requires that employer force the employee to take lunch. This is not a federal law concept. CA employers can and will discipline employees for failing to take lunch (as in not work). Employees can (and maybe should be) legally be fired for refusing to take lunch although they do have to be paid for the time spent working. CA employers cannot force the employee to remain on the premise without turning lunch into paid time. You need to read the rules spelled out in the previous CA sheet on meals that I referenced.

                This does not really affect you, but although the actual CA law on meals technically effects all employees, CA-DLSE regulations only penalizes employers for violations against Non-Exempt employees. Exempt employees are in the strange position where it is illegal for an employer to have them work through lunch but for which there is no actual penalty imposed on the employer. I guess no one ever said that this stuff was supposed to make sense.
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

                Comment


                • #9
                  excellent posts, DAW!
                  Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                  Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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                  • #10
                    Practice makes perfect. These are questions that we have all answered before.
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

                    Comment


                    • #11
                      I know but you explain the answers so clearly & in detail.
                      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                      Comment

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