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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38879
Experience:  Retired (mostly)
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I work for a non-profit organization. I am a full-time exempt

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I work for a non-profit organization. I am a full-time exempt program manager. My hours were recently cut to 35 hours (and my pay reduced) but I am still exempt from overtime. I have been advocating against cuts to my program and recently received an email string (forwarded to me obviously in error) in which Board members say scathingly negative things about me and call for me to be written up. I know there are personality issues at play here, possibly ethical ones, but are there any legal issues or recourse for me? Thanks

There are two different issues here:

1. Are you actually an exempt employee under California law? See IWC Order 4-2001. Without knowing your exact job description and what you actually do, regardless of your job description, it's impossible to be definitive here. I encourage you to review the IWC order and see if you really qualify as salary exempt.

2. Assuming that you are salary-exempt, then you must receive at least two times minimum wage for full-time employment. This means $8 per hour X 2 X 40 hours per week X 52 weeks ÷ 12 = $2,773.00 per month. Cutting your time to 35 hours suggests that you are an hourly employee, because an exempt employee does not work "hours." An exempt employee works a job description and must be available as the job requires.

The employer can reduce your pay -- just not below $2,773. It has nothing to do with the number of hours you are expected to work, since you are presumably exempt from overtime, regardless of the number of hours you actually work.

Finally, unless your pay is reduced by at least 20%, you cannot generally quit and receive unemployment insurance benefits. So, this is something to keep in mind should you choose to refuse the new job description.

Concerning the "scathing" comments about you -- if reputation-injuring statements about you are made to third parties, and they are phrased as factual, rather than as opinion, then that is defamation of character and you can sue for the injury to your reputation. Otherwise you would have no claim for these disparaging remarks.

Defamation is a difficult case to prove -- it would be necessary to carefully review the statements by boardmembers to determine if they are actually defamatory, and further to see if they can actually be proved sufficient to be admissible evidence in court.

Please let me know if I can be of further assistance.

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Customer: replied 4 years ago.

In terms of the exempt status, this has confused me because I do direct a program and supervise 3 people, clearly qualify as exempt--however, my pay rate (and steps for raises) is all based on an hourly rate and assumed a "full-time" schedule at 35 hours a week. Recently our full-time schedule for my program was increased to 40 hours (for me as well as the hourly employees that I supervise) and I got an increase in pay. Now we've been reduced again to 35 hours. I don't understand how this is really okay, since I am exempt and regularly work more than 40 hours. Other program managers in my exact same position were kept at 35 hours the whole time. What is wrong with this picture?


Thanks for your answer.

Salary-exempt means not subject to overtime pay -- that's all. Saying that a salary-exempt employee must work 35 hours or 40 hours, or any other number of hours is meaningless in terms of pay, because pay is not based on hours worked. Pay is based upon the salary exemption.

An employee is entitled to whatever compensation the employee can negotiate with the employer, as long as the employee's pay is at least $2,773 per month -- because that is the minimum amount permitted by California Labor Code 515(a).

Given the law, the employer can instruct you to be available 35 hours per week or 40 hours per week or 24X7, without being liable to pay you more than your agreed-to salary, the point here is that trying to connect your hours with your pay is simply meaningless. The only requirement is that you must be paid at least $2,773 per month -- otherwise, you are non-exempt and you are entitled to overtime pay.

There is one possible exception to all of this: If you are a woman, and there are men working for your employer (or visa versa) with a similar job description and who have similar qualifications as you, then you may be able to file a discrimination charge based upon the federal or California Equal Pay Act -- which requires that employers not be able to discriminate in wages, salary or benefits based upon sex/gender. The employer can't subject you to a different pay regime simply because of a gender-based distinction. If you think that's is a factor in your compensation, then contact the Department of Fair Employment and Housing (DFEH).

Hope this helps.
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