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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27888
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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My grandmother passed away and I took a couple days off for

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My grandmother passed away and I took a couple days off for the funeral and what not, I had asked to work from home since I am pregnant and would like to save my PTO and knew that I wouldn't necessarily be busy all day and was told no. Apparently I had gone negative and my employer never said anything. A week later I came down with a lung infection (while pregnant) and had to stay out sick for 3 days. When I told my boss that I wouldn't be back on the second day she informed me that I was negative in my PTO and that I wouldn't be paid for the sick days (which I had actually checked in and checked email everyday so they weren't entirely full days off). When I got my paycheck, not only had they deducted for the sick days, they also had deducted for the days I had gone negative in my PTO which fell in different pay periods. Can they do that?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.

Good afternoon Kate,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. In order to give you a clear and concise answer, I will need some additional information about the circumstances, please.

1. Are you a salary exempt employee, or are you hourly?
2. Does your employee have a sick leave policy and give you sick days---or do you only have PTO.
3. What do you mean, that they deducted for days you went negative in your PTO? Are you saying that they discovered that you had missed days in other pay periods that you didn't;t have PTO for and deducted from your wages not in a former pay period when the absences occurred but in a later pay period?

Doug

Customer: replied 1 year ago.

Hi Doug,


 


I'm a salaried employee and there is no sick policy, just PTO. I wasn't informed that I had gone negative until I went sick. Our pay periods are 1-15th and 16-31st. Apparently I went negative prior to the 15th pay period but still was paid in full for that pay period. On the next pay period I was out one day for the funeral and for being sick, but they deducted not only the days I was out in the 16th-31st period but also the days I had gone negative prior to that and had been paid for. Also, if I am checking in or working even for an hour of the day as a salaried employee, can they count the whole day as PTO?


 


Thanks!

Expert:  LawTalk replied 1 year ago.
Hi Kate,

Are you salary exempt? That means that you do not qualify for overtime, ever.

Doug
Customer: replied 1 year ago.

Yes, I'm exempt

Expert:  LawTalk replied 1 year ago.
Good afternoon Kate,

Under CA labor laws, as a salary exempt employee, if you work at all in any given week, you mast be paid for the full week, even if you only work a short time from home---so long as you are doing wok for the employer.

If you are absent from work a full day for personal reasons, and not out sick, and you do not have PTO/vacation time accrued, the employer may deduct from your salary for that day.

If you employer does not have a bone fide sick leave plan, then they may not deduct any salary in a week that you work at least part of one day. If there is a bone fide sick leave policy, and you have not accrued sick leave yet, or you have no saved sick leave, then the employer may deduct for a complete day of absence.

You asked: Also, if I am checking in or working even for an hour of the day as a salaried employee, can they count the whole day as PTO? No they cannot.

Neither can they deduct from a present paycheck for you having missed a day in a previous pay period---even if that missed day is legal to dock you for.

You may actually sue the employer in court and recover your wages. Additionally, if you sue in court, under federal laws (FLSA), you are also entitled to seek 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 the wages owed you in the claim based on their willful failure to pay you. Additionally, you will be entitled to be awarded costs of the court as well as your attorney fees incurred in filing suit and litigating it against your employer. http://labor-employment-law.lawyers.com/wage-and-hour-law/Liquidated-Damages-and-FLSA-Claims.html

A recent law signed by the CA Governor, allows CA employees to seek liquidated damages when making a claim to the Division of Labor Standards Enforcement (DLSE), just as they could if suing in court initially. So in CA whether you make a claim to the Division of Labor Standards Enforcement, or file an action in court on your own, you may seek liquidated damages. Here is a link to an article on the change---good for CA employees, but bad for CA employers: http://www.shawvalenza.com/publications.php?id=343

The award of liquidated damages is mandatory unless employer shows that (A) act or omission giving rise to violation was in good faith and (B) the employer had reasonable grounds for believing that act or omission was not a violation of 29 U.S.C.A. § 216(b). This is a very difficult standard for the employer to meet.

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


Here is an article you might want to share with your employer, before you choose to either sue them or to file a wage claim with the Department of Labor: http://blog.griegolaw.com/2007/04/02/do-i-have-to-pay-my-exempt-employees-if-they-are-sick/
You may reply back to me using the Continue the Conversation or Reply to Expert link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you when our communication is completed.

I wish you the best in 2013,

Doug
LawTalk, Attorney
Satisfied Customers: 27888
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you for the answers, however, the articles seem old and only relating to FLSA, and the one that is most helpful is another lawyers blog relating to sick pay from 2007. Any resources from CA? If I am going to be pushing back on my employer I'd like to have as much information to show them and it's still not clear to me since there's a lot of talk about 4 hour increments. If I only work an hour of a day, can I be charged PTO, that would be considered less than 4 hours, which some of the information says they can. Also, the sick plan vs PTO is confusing. If there is no sick plan can't they force you to use PTO and if you run out of PTO being out sick they can't still deduct from your wages or consider those days unpaid?

Expert:  LawTalk replied 1 year ago.
Good morning,

If you are sick, as opposed to just taking time off for a personal reason, then to deduct for your illness, your employer MUST have a specific policy in force allowing them to do that.

The DSLE has been on lock-step with the FLSA for several years now, and the rules are the same. CA removed the 4 hour increment issue in 2010, instead siding with the rules as promulgated in the FLSE.

As an example, if you were to work 3 hours in a day, and then go home ill, and you had no accrued PTO and only 2 hours of accrued sick leave-----then your employer would be able to deduct the 2 hours of sick leave, but they would still have to pay you in full for the day because you are salary exempt.

And, any such deductions and combination of sick and vacation leave banks can only be done if the employer has specific policies allowing for these deductions and also requiring the combined use of sick days and vacation days.

Here is another article on this issue, and as you can see----in CA, the 4 hour increment standard has been abandoned.

http://www.millerlawgroup.com/publications/alerts/California-DLSE-Shifts-Enforcement-Regarding-Deductions-from-Exempt-Employee-Vacation-and-Sick-Leave-Banks.html


Doug
Expert:  LawTalk replied 1 year ago.
Good evening Kate,

I wanted to thank you for using JustAnswer, and to inquire whether my answer to you was helpful to your understanding of the law, as regards your question.

Is there anything else that I can assist you with, please feel free to ask. If you do not require further legal information at this time, please feel free to bookmark my profile so you can request me when you do have another question. Here is a link to my profile: http://www.justanswer.com/law/expert-lawtalk/

Thank you very much and take care.

Doug
Customer: replied 1 year ago.

Hi Doug,


 


It was somewhat helpful, getting blogs from other attorneys wasn't super helpful as I don't think that is something I could really go to my employer with, I was looking for more official sources. Some of the information seemed vague and contradictory, especially pertaining to the sick vs PTO information and I can't really afford to actually hire an attorney right now to try to pursue the wages. I do appreciate the answers you gave and it did help a little, but just not as concrete as I was hoping for.


 


Thanks

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