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socrateaser
socrateaser, Lawyer
Category: Employment Law
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Experience:  Retired (mostly)
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An exempt employee's scheduled hrs of work....what is the

Customer Question

An exempt employee's scheduled hrs of work....what is the law regarding notification to the exempt employee as to their wkly schedule and how much warning must be given to the employee when his/her hrs of work are changed?
Submitted: 1 year ago.
Category: Employment Law
Expert:  socrateaser replied 1 year ago.

Hello,

Under U.S. DOL regulation 29 C.F.R. 541.602(a), "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." The implication of this regulation is that there is no set amount of hours or schedule applicable to an exempt employee. Rather, it is the employee's obligation to "get the job done," and to schedule their time as may be necessary to accomplish this goal.

Similar rules are found in California Industrial Wage Commission Order 4-2001, which is the California Labor regulation concerning salary exempt employment.

A set schedule is antithetical to the definition of a salary-exempt employee. However, employers routinely misuse the salary-exempt designation to avoid paying overtime, and instead to impose unreasonable schedules on exempt employees. Unfortunately, unless an employee makes it clear to their employer at the time of hiring that the employee will not submit to an employer's schedule, if the employee is classified as "salary exempt," the employer immediately takes the position that the employee can be manipulated into working unreasonable hours and schedules without limitation.

The bot***** *****ne here is that there is no specific law that regulates an exempt employee's schedule. Instead, it's up to the employee to push back against an unreasonable schedule, and if the employer does not accept the employee's independent judgment on how the employee does his or her job, then the employee must complain to the Cal. Division of Labor Standards Enforcement (DLSE) on grounds that he or she is being treated as an hourly employee, and therefore, he/she should receive overtime for all of the additional hours that the employee is being forced to work.

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