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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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My company provides a PTO plan. Recently the company made amendments to the plan that limi

Resolved Question:

My company provides a PTO plan. Recently the company made amendments to the plan that limit unexcused PTO's to five. After five unexcused PTO's the companies policy is that they will deduct one day of pay for any unexcused PTO, regardless if you have a excused note from your doctor, and regardless if you have banked PTO's in reserve. Is this lawful ?? Prior to amendment of policy, PTO's were used as deemed fit.
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.
Hello and thank you for entrusting me to answer your question. Are you a salaried employee? If not, when you say that your employer will "deduct" wages, do you mean wages that have already been earned? Or do you simply mean that the employee will not be paid for any day on which they have an unexcused absence?

Thank you for clarifying these points for me.
Customer: replied 5 years ago.
Yes, I am a salaried employee with exempt status.
Expert:  Patrick, Esq. replied 5 years ago.
Thank you very much for clarifying.

Since employers in the state of California have no legal obligation to provide PTO, the courts have held that an employer may impose any rules or conditions on the use of PTO that it sees fit.

Furthermore, California law provides that an employer may deduct the pro rata "daily rate" of pay of a salaried employee who misses any full day of work. (Partial-day absences cannot be deducted unless they are taken as part of intermittent FMLA-designated leave.)

Understanding these principals together, this means that an employer is free to condition the use of PTO to excused absences and that a salaried exempt employee who misses a full day of work without being excused may have their salary docked by their pro rata "daily rate" of pay. For example, if an employee makes $3,000/month, his or her pro rata daily rate would be $100 and an employer would be free to dock that amount on any day that the employee does not show up for work.

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

My absolute greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.
Customer: replied 5 years ago.

Say that I have worked in excess of the 80 hrs. on the 9th day of the pay period and on the 10th day I take an unexcused PTO that is in excess of the five allowed. Can the employer still take a day a pay away even though I worked in excess of the 80 hrs of which my salary is based on ??

Expert:  Patrick, Esq. replied 5 years ago.
Yes, because an employer can force a salary exempt employee to work as many hours as necessary, so the number of hours they have worked is irrelevant to the above analysis.

Again, my number one goal is that you are satisfied with my answer. If you still require further clarification, I am happy to continue assisting you.
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