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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6802
Experience:  Significant experience in all areas of employment law.
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I work for a ca race team and weve always been paid salary.

Customer Question

I work for a ca race team and we've always been paid salary. We work long hours in the summer and take off some time in the off season, it has always seemed to work out. Now that times are getting tight I find that I'm not getting paid for sick days I've had to take off. I was told to take Wed, Thur and Fri off for Thanksgiving and was not paid for that. I called Ca labor board and was told they do not have to pay me for days I take off but they have to pay me for a full day if I work any part of the day, also if they tell me to take the day off they have to pay me, is this true. I confronted the boss the first couple of times they did this and they went ahead and paid me but I don't want to have to do this everytime. What excatly are the benefits of a salaried employee? Can I have law #'s to take to the employers if in fact the above is true?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to answer your question.

Please allow me to answer your question by first explaining that any employee can be paid on a salary basis, but only "overtime exempt" employees can be paid a flat rate salary regardless of the number of hours worked. If an employee is not "overtime exempt," they must be paid IN ADDITION to their salary an overtime rate for all hours worked in excess of 8 per day or 40 per week.

Only certain limited types of positions are overtime exempt, and I'm not sure that the position you describe fits into any exempt category. Here is a summary of the primary overtime exemptions: http://www.dir.ca.gov/dlse/faq_overtimeexemptions.htm

So, it may be that even though you are being paid salary, as an employee who is not ovetime exempt you are still entitled to pay at an overtime rate for all hours worked in excess of 8 per day or 40 per week.

This out of the way, I can tell you that an employer may deduct from a salaried employee's wages only for full day absences if those absences are due to personal reasons, sickness, or disability. Absences "occasioned by the employer," (i.e. workdays that you are not given the opportunity to work) cannot be deducted from one's salary even if the entire day is missed. See here for the law governing deductions from salary pay: http://cfr.vlex.com/vid/541-602-salary-basis-19683529

Furthermore, if you were "overtime exempt," impermissible deductions from your salary would compromise that exemption and thus permit you to collect overtime.

I realize that this is a lot to take in, but it can be summarized as follows: Even though you may be salaried, you are entitled to overtime for all hours worked in excess of 40 per week or 8 per day unless you fall into an overtime exemption, which few positions do and most 'race team' positions would not. With regard to deductions from salary, full day absences may not be deducted if the absences are occassioned by the employer, meaning that you don't have the opportunity to work.

Please let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for 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.

Expert:  Patrick, Esq. replied 1 year ago.
Gil,

Please allow me to also add that if you wish to file a wage claim, that would ordinarily be done through the Department of Labor Standards Enforcement here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

Did you have any further questions for me? If not, would you be so kind as to provide a positive rating of my service? This is very important to me, as it is the only way I receive credit for my work.

Best wishes to you moving forward.

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