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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7651
Experience:  Significant experience in all areas of employment law.
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I am a salaried employee and having several issues with my

Customer Question

I am a salaried employee and having several issues with my Executive Director. From having having pay deducted from my check when accumulated PTO time did not cover time needed, to refusing to pay jury duty service until advised that it was manadatory, to behavior and comments harrassing in nature. On many occassions I have wanted to leave, but cannot afford to and am actively looking for other employment. Today, I was accused of lying because I didn't submit a summary of work done from home by the end of the day, when a car emergency prevented me from being at the office. I can prove everything I say and do...what rights do I have?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to assist you. I am very sorry to hear about your employment situation.

Can you be more specific with your question, as a summary of 'rights' would be almost impossible to provide.

Thank you so much for your understanding, and I look forward to helping you.
Customer: replied 2 years ago.


Can pay be deducted from my salary even though I worked over 30 hhours in the same week, do I have to document time during a work day and if I have no decision making ability, am I considered a salaried employee?

Expert:  Patrick, Esq. replied 2 years ago.
Cindy,

Thank you very much for focusing your question. This is really helpful. Please allow me to address your inquiries as follows:

Can pay be deducted from my salary even though I worked over 30 hhours in the same week?

True "salaried" employees must receive a regular payment of a "predetermined amount...not subject to reduction because of variations in the quality or quantity of the work performed." 29 C.F.R. §541.602(a). Further, "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."

A salaried employee may not have their wages deducted 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.

There are exceptions to this general rule that an employee must always be paid their salary in full where an employee misses any COMPLETE day of work due illness, disability, or for personal reasons. Those exceptions are enumerated at 29 CFR 541.602, which you can read in its entirety here: http://cfr.vlex.com/vid/541-602-salary-basis-19683529 Note that partial day absences cannot be deducted from the employee's pay.

Do I have to document time during a work day and if I have no decision making ability?

An employer is free to require any employee to document their time spent during their workday, regardless of whether that employee has decision making ability. This is true because an employer retains vast discretion to direct an employee during their worktime and can typically require anything that does not run afoul of specific labor laws or itself constitute an illegal act (i.e., an employer can't direct an employee to steal).

Am I considered a salaried employee?

Any employee can be paid on a salary basis. The real question, however, is whether the employee is overtime EXEMPT. In that case, the employee can be payed a flat rate, REGARDLESS of the number of hours worked.

Otherwise, an employee can receive a salary (which will be premised on an assumed 40 hour work week), and all hours worked in excess of 8 per day or 40 per week must be paid on top of the salary as overtime.

So for example, if an employee is not overtime-exempt but is being paid a salary of $1,000 per week, that would break down to an hourly rate of pay (assuming a 40 hour work week) of $25/hr. If an employee works 42 hours in a week, they would be entitled to 1.5 times their regular hourly rate of $25/hr for the additional two hours on TOP of their ordinary salary.

Only certain positions will be overtime exempt, and thus "pure" salary where the number of hours worked don't matter at all. The exemptions can get very complicated, but the common ones are for professionals such as doctors and lawyer, managers, "administrative employees," computer professionals, and certain salespersons. See here for a much more thorough list: http://www.dir.ca.gov/dlse/faq_overtimeexemptions.htm

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
Customer: replied 2 years ago.


Thank you so much. I am treated as an exempt employee by title, but in reality have little to no decision making abilities. I work regular 50 hour weeks. I'm a manager in name only and to prevent overtime. For example I was recently directed to attend a mixer event in the evening after a full day of work, to accept a check for the organizatio. I invited a spokeswomen for the organization to attend with me and upon advising the ED of the invitation, I was told that it's not my place to invite people without prior permission. I'm been told I shouldn't do anything without asking, though I'm technically responsible for revenue growth and budget management. I'm held responsible if budget goals are not met, <which has not been the case> but I receive no financial reports. I don't know if advising the Board is considered insubordination and am not invited to attend Board meetings, but am required to submit written reports to the Board. It's beyond silly and I'm looking for another position, but in the mean time I am being unfairly pressured, macromanaged and demeaned despite much success increasing revenue. I'm trying to determine how much I have to take before I have reasonable grounds for quitting without losing unemloyment benefits.

Expert:  Patrick, Esq. replied 2 years ago.
Cindy,

Thank you for your reply.

California law provides that in order to be exempt pursuant to the managerial exemption from overtime, an employee must spend more than 50 percent of his or her time performing the following duties.

- Customarily and regularly directing the work of at least 2 or more employees
- Customarily and regularly exercising discretionary power
- The authority to hire and fire employee
- The ability to make comments and suggestions about personnel matters that are given weight by the employer.

The employee must also make a salary of at least $640 per week to be eligible for the exemption.

If this exemption does not describe you and none of the other exemptions from overtime apply, an individual in your circumstance can file a wage claim with the Department of Labor Standards Enforcement. To file a wage claim with the DLSE, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

With regard to quitting and obtaining unemployment benefits, this is typically hard to do. This is because one of the requirements for receiving benefits is that the claimant be unemployed "through no fault of their own." When an individual quits, they are generally regarded as unemployed "through fault," since they made the voluntary decision to become unemployed.

The EDD recognizes certain very limited exceptions to this general rule, but I'm not sure that any would apply to the circumstances you have described. Your best bet would probably be to argue that the non-payment of overtime qualifies as non-payment of wages owed, which would provide good cause to quit. The problem here, though, is that whether you satisfy the managerial exemption to overtime is somewhat up for debate, and so it is at least marginally unclear whether any overtime is actually owed.

See here for a full list of the circumstances in which an individual may voluntarily quit and still retain eligibility for UI benefits: http://www.edd.ca.gov/uibdg/Voluntary_Quit_-_Table_of_Contents.htm

Again, I sincerely XXXXX XXXXX this information helps you and I wish you the best. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 7651
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

Thanks for the email, it was very helpful. I was hired under the managerial exemption, but was never allowed discretionary authority, did not supervise employees, did not have the ability to hire and fire etc. I have very little doubt, overtime would be awarded in my case. That being said, I love the organization and as myprimary job was fundraising, I would not want to be responsible for taking revenue away from programs in support of those most in need. , I was offered and accepted another position as Executive Director. I would like to leave some information for future referrence with my employer and the current Board of Directors, so they don't end up with serious liability issues when they find a replacement for my position. The links you provided are very helpful and I am grateful for the service!

Expert:  Patrick, Esq. replied 2 years ago.
Cindy,

You are very welcome. I am so glad that you found the information provided to be helpful.

Best wishes to you moving forward.

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Patrick, Esq.
Patrick, Esq.
2321 Satisfied Customers
Significant experience in all areas of employment law.