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California state employee furloughs

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  • California state employee furloughs

    If you aren't already aware, Governor Schwarzenegger has implemented a two day per month furlough for all state employees, beginning Feb 6. This means that the state will shut down for business for two days per month and state employees will be forced to take these days off without pay. This is the Governor's genius plan to help rid CA of a 40+ billion dollar deficit (which his plan will only save 1.3 billion over 18 months.)

    I have to wonder whether this plan violates the FLSA for exempt employees. For all you wage and hour gurus out there, doesn't an exempt employee lose his or her exempt status if they are not paid on a salary basis?

    29 CFR 541.62 states: An employee will be considered to be paid on a
    ``salary basis'' within the meaning of these regulations if the
    employee regularly receives each pay period on a weekly, or less
    frequent basis, a predetermined amount constituting all or part of the
    employee's compensation, which amount is not subject to reduction
    because of variations in the quality or quantity of the work performed.
    Subject to the exceptions provided in paragraph (b) of this section, an
    exempt employee must receive the full salary for any week in which the
    employee performs any work without regard to the number of days or
    hours worked. Exempt employees need not be paid for any workweek in
    which they perform no work. An employee is not paid on a salary basis
    if deductions from the employee's predetermined compensation are made
    for absences occasioned by the employer or by the operating
    requirements of the business. If the employee is ready, willing and
    able to work, deductions may not be made for time when work is not
    available."

    So, what gives? Is this plan blatantly in violation of the FLSA for exempt employees? Or am I missing something?

  • #2
    If you're missing something I am too, because my response is the same as yours.

    DAW? Patty?
    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


    • #3
      This is complicated and not something that I have had to deal much with. First of all, you are assuming that governmental employees are subject to exactly the same rules as private sector employees and this is simply not true. FLSA was passed in 1938 and at the time governmental employees were excluded in their entirety. The very first time governmental employees were covered at all by FLSA was in 1966 and at the time that was restricted to hospitals, nursing homes, mental institutions, schools and mass transit system. There have been more law changes over the years, but all governmental employees have NEVER been brought 100% into all FLSA rules.

      There have been some big court decisions (National Leauge of Cities v. Usery and Garcia v. SAMTA to name two). In laws passed in 1974, 1985 and 1995 Congress mostly brought governmental employers under FLSA. But there are still many differences. This is why (for example) comp time is legal for governmental employers but not private sector employers.

      Now this is not my area of expertise but the source books I have talk about the no docking rule as applied to governmental employees as being invalid due in part to several court decisions (SEIU v. San Diego County and Spradling v. City of Tusla. My references also cite a 09/06/91 rule issued by federal DOL which I cannot find on the DOL website.

      You might want to just give federal DOL a call and ask them. I am strictly private sector. I have never cared what governmental employers rules were, certainly not enough to spend major time researching these issues.
      "Reality is that which, when you stop believing in it, doesn't go away".
      Philip K. **** (1928-1982)

      Comment


      • #4
        Endeavor, if you do make the call DAW suggests, would you post the response you get here? I'm sure we'll get a lot of questions on the subject.
        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


        • #5
          I do know that under federal law, governmental employers CAN dock exempt employees for partial absences. 7(k) I think. I would like to hear the response as well, though.

          Endeavor, good luck getting through.
          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

          Comment


          • #6
            If I get a chance I'll call myself, but the nature of my job is currently such that I can't spend a lot of time on the phone.
            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


            • #7
              Originally posted by Pattymd View Post
              I do know that under federal law, governmental employers CAN dock exempt employees for partial absences. 7(k) I think.
              I wasn't aware of that. In any event, this would be full day absences. I'm sure I will hear something soon re this. The hearing is scheduled for the 29th.

              Comment

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