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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27889
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I am a salaried employee involved in sales, a good portion

Resolved Question:

I am a salaried employee involved in sales, a good portion of my work is outside of the office. I work on proposals from home almost every night from home. Plus long road trips were I am on th road for 12 hours or more a day.
Recently my office hours became under scrutiny, to the point I was docked almost a full days pay. for hours I was away from the office. I was never asked where I was during that time. I do not fill out a time sheet for weekly/biweekly payroll.
My qusetion in this legal? to deduct my pay in this manner?
I live and work in california.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.
Good morning,

I'm Doug, and I'm very sorry to hear of your situation.

Does your employer have set office hours, or minimums, which outside sales employees must adhere to?

Doug
Customer: replied 1 year ago.

A few weeks ago I recieved an email to all employees saying we are expectedtobe in the office between the hours 8:00-4:30 with a 30min. Lunch.


 


So yes.

Expert:  LawTalk replied 1 year ago.
Good morning,

Thanks for the additional information.

Under the laws of the State of CA and federal employment law, unless you are deemed salaried exempt---which would be highly unlikely as you have been doing primarily outside, sales and exempt from overtime already---being salaried does not mean that your employer may not deduct for hours that you are expected to be in the office and which you are not---regardless of how may hours you work outside the office.

However, your employer has made a mistake in demanding that you be in the office 8 hours a day, as that means that outside sales is no longer your primary duty---working from the employer's place of business does not constitute outside sales---and therefore, under both federal law, and CA law, you must be paid overtime for all hours worker over 8 in a day, and over 40 in a week. Though, your salary may be deducted for hours that you are not in the office. However, the hours you do work outside sales now would be added to your work from the office and would affect overtime you would be entitled to.

The employer can not have it both ways though.

And if they choose to make you a salaried exempt employee, they will have to meet certain requirements such as a minimum salary of $455 per week and show that you meet other requirements---which if you are not primarily a supervisor, they may not be able to do either. But an employer may not deduct from your salary for you being out less than 1 day if you are a legitimate salaried exempt employee.

You might want to consider filing a complaint with the local office of the CA Department of Labor. It appears that your employer is presently violating wage laws if you are not getting overtime pay.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you have additional questions; and if you do, I ask that you please keep in mind that I do not know what you may already know or with what you need help, unless you tell me.


Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time in assisting you. Kindly remember to ONLY rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and contact me with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to address your concerns to your satisfaction.

I wish you the best in 2012,

Doug
Customer: replied 1 year ago.

Thank you for letting know that my employer is violating the law by calling me a saleried employee but not paying me overtime for hours I work beyond 8 a day/40 a wk.and docking my pay for the few hours I miss from the office. I do at least 2-3 hours of work from home daily working on proposals. Even though I do outside sales my title is SALES and APPLICATIONS. I was told by our payroll person, that I was NOT outside sales because of that title. Futher she told me I was not to be paid my mileage as I put down that I my trip started from home and they would only pay mileage starting from the office even though I drive directly to customers to save milage as some of the customers I need to visit our closer to my home than the office.


Can they do that? Keep from paying me mileage because my trip starts from home? And can they make me pay back mileage they already paid me for? Also I was told if the trip is less than 10 mies they would not pay my mileage. Is that legal?


When I started I was told I woud be paid milage or given a car allowance and/or company car, since I was never given a car I have been paid for my mileage at .55 cents a mile.

Expert:  LawTalk replied 1 year ago.
Good evening,

Mileage is not paid to and from your place of employment. If your first stop before the office takes you out of your way from your route to the office, you may charge for that difference.

The mileage that you are not compensated for by your employer, and are not commute miles to and from the office may be deducted by you on your taxes.

An employer is no legally obligated to pay mileage---you may write that portion off that they do not pay. because the mileage is not legally required, the employer may make the rules for what mileage they will compensate---and 10 miles or over in one trip is legal, I'm afraid.

If you have been paid already, then the employer may not demand your wages back unless you were paid in error.

This mileage issue may be just a small detail compared to all the overtime and penalties you may be entitled to. At 2 to 3 hours a day, 5 days a week working from home that is about 60 hours overtime a month---and that may be absolutely huge for you in terms of what you are owed. On top of that, as they seem clearly to have ignored their obligations under the law, you may seek additional damages.

You may actually sue the employer and recover your wages. Additionally, under federal laws (FLSA), you are also entitled to what is called Liquidated damages. Liquidated damages is equal to the amount of back wages that they owe you and must be paid in addition to the wages themselves---so you essentially get double overtime wages in the claim based on their willful failure to pay you. http://labor-employment-law.lawyers.com/wage-and-hour-law/Liquidated-Damages-and-FLSA-Claims.html

Here is an excellent article which deals with pursuing an FLSA claim---which you may do in either state court or federal court. Do take the time to review it:

http://www.thefreelibrary.com/Pursuing+an+FLSA+claim%3a+many+employers+have+figured+out+how+to+skirt+...-a0183316511


I would suggest that you make a consultation with a local employment law attorney and thoroughly discuss this issue. You can even seek to get your attorneys fees paid by the employer.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

Would you please rate me highly now, based on my assistance to you in understanding the law.


I wish you the best in 2012,

Doug
LawTalk, Attorney
Satisfied Customers: 27889
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
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