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My wife and I run a catering business in California. We have

less than 100 employees. Most...
My wife and I run a catering business in California. We have less than 100 employees. Most of very part time (but all get W2's). We have a full time employee that's pregnant. I've seen the information from California. But wanted to know if we need to pay the employee. I understand the employee can take vacation and sick leave. But is the employee due any salary while out outside of sick/vacation?
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Answered in 5 minutes by:
7/9/2013
Brandon, Esq.
Category: California Employment Law
Satisfied Customers: 1,953
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Verified

Employment-LawExpert :

Hello and thank you for your question today.

Employment-LawExpert :

Are you online with me?

Customer:

Yes

Employment-LawExpert :

So, under california and federal law you must give this employee 12 weeks of unpaid leave.

Employment-LawExpert :

if this employee has vacation time, that employee may elect to concurrently use their vacation time during this period.

Employment-LawExpert :

If you have provided that employee benefits, i.e. heal insurance, you must continue providing that benefit to them.

Employment-LawExpert :

However, you are not required to give them their salary for any week in which they have not worked or for any hour they have not worked if they are an hourly employee.

Customer:

Gotcha. So they can burn through sick and vacation. But then everything else is unpaid.

Employment-LawExpert :

Yes, as long as they are not an exempt employee, in which you must pay them salary for any week in which they work, i.e. if they work 1 day a week they must be paid.

Employment-LawExpert :

for that entire week

Employment-LawExpert :

Does that fully answer your question today?

Customer:

The employee is salaried. But I don't know anything about "exempt". What is an "exempt" employee?

Employment-LawExpert :

So exempt means that an employee gets a base salary. Whether they work 40 hours a week, or 80 hours a week they get the exact same salary. The salary is not based on hours, and that employee is not entitled to overtime pay.

Customer:

Gotcha. So the employee I believe does fall under that.

Customer:

She gets a standard salary. However the hours worked might change depending on the week.

Employment-LawExpert :

Got it, then yes, this person would likely be an exempt employee. Thus, you are still allowed to not pay them, but if they come in for any reason during the week they MUST be paid for the full day, and likely for the full week.

Customer:

OK. I just found this site: http://www.calchamber.com/california-employment-law/pages/exempt-nonexempt-employees.aspx I think she is exempt. So that's good to know. So make sure she doesn't work at all during her time-off I guess is the takeaway here. Otherwise we need to pay her. Out of curiosity, what is the distinction between paying for the day or for the week?

Employment-LawExpert :

So, it all depends on how you have actually set up the company.

Customer:

Good. times. We're a LLC.

Employment-LawExpert :

You have to pay the full week if you do not offer qualifying sick leave and PTO benefits.

Customer:

OK. So she does get vacation and sick leave

Employment-LawExpert :

If you do, then you would be able to deduct for each day not worked.

Employment-LawExpert :

Let me get you a good article which discusses it in length

Customer:

That would be great. I think it will be easier to not have her work. But it would be good to understand in case she has to work.

Customer:

Thanks.

Employment-LawExpert :

Make sure to look at page 5

Employment-LawExpert :

which discusses the whole week rule

Customer:

So from looking at this document, it seems like any work equals a weeks pay at least for maternity leave.

Employment-LawExpert :

Sorry I got kicked out of the chat for a moment

Employment-LawExpert :

Are you still with me?

Customer:

yes

Employment-LawExpert :

Again, it really depends on the exact language of the sick time leave that you grant through your company and your PTO. But yes, to be safe, that is the best course of action.

Employment-LawExpert :

Basically, the salary may be reduced starting on the day which she does not work and has exhausted her PTO and sick leave.

Employment-LawExpert :

However, it partly depends if she is taking her time off under PDL or under FMLA

Customer:

We're a small company. Unfortunately I don't think anything has been written down. It's all verbal. So it sounds like if we did write it into the "exact language", then we'd have better ground to argue just one day. But short of that, it sounds like the week is the better way to go. Does that sound correct to you? Need to write it down in the "exact language"?

Employment-LawExpert :

Yes, writing it down is the better way to go to prevent future problems. That being said, you mention that you are small but mention less than 100 employees. Do you have less than 50 employees?

Customer:

We run a few events a year that require a lot of part time staff. They basically work maybe 40 hours over the year. However they all get W2. So the amount is over 50 as I understand it. But I'd need to ask my wife to be sure (I'm the very silent partner). What is the distinction for less than 50?

Employment-LawExpert :

So for her to be protected and be guaranteed the 12 weeks of leave, she must qualify under the FMLA or CFRA. Both of these require that you have at least 50 employees. If you have less than this, then she is not guaranteed her job. Thus, you would not have to keep paying her benefits, etc.

Customer:

Gotcha

Employment-LawExpert :

Have I fully answered your question today?

Customer:

Yes, I think so. Your point about FMLA or CFRA are more relevant for accruing health benefits, etc, correct? I guess we could lay her off if we had less than 50 employees without a guaranteed job. But that's really a loss for us. So that number sounds to be more relevant for accruing benefits, etc.

Customer:

right?

Customer:

(we don't offer health benefits)

Employment-LawExpert :

Correct. It is the fact that you could technically lay her off and then rehire her when she wants to come back and not have to pay her anything during that time.

Customer:

Make sense. You've been a big help, thanks! "Excellent"!

Brandon, Esq.
Category: California Employment Law
Satisfied Customers: 1,953
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Verified
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Brandon, Esq.
Brandon, Esq.
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Category: California Employment Law
Satisfied Customers: 1,953
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Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.

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