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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39045
Experience:  Retired (mostly)
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I am a salaried employee working in California, with a corporate

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I am a salaried employee working in California, with a corporate office in NY. for the past 13 years salaried employees have been required to punch in and out. Recently certain employees were singled out (most working well above the required 40 work week) and told in order to simplify time-keeping we would no longer be required to do so. The problem is that since this procedure was implemented time-keeping records do not even reflect the 40 hour work week required in the official company manual. Time is not being reflected in salary, however I am uncomfortable that my time usually reflect 50+ hours is not being reflected at less then 30. and The fact that certain employees have been singled out is also a concern.

Salary-exempt employees are not subject to overtime laws. An employee can be required to track time worked, but cannot be paid less, as long as the employee works some time in each day of every workweek, during which the employee is expected to be available to the employer. See 8 C.C.R. 11040 (Cal. IWC Order #4-2001); 29 Code Fed. Regs. 541.0(a).

Consequently, if your salary has not been altered as a result of the incorrect timekeeping, you are not damaged, and the employer has committed no violation of law. However, if your salary is reduced, then you can file a complaint with the U.S. Department of Labor or California Department of Labor Standards Enforcement (DLSE), and obtain damages for any reduction in salary caused by the incorrect timekeeping records.

It may be that the employee is trying to find a means to circumvent the hourly requirements of the Affordable Care Act ("Obamacare"). If so, then in my opinion, this attempt will fail, because as a salaried employee, you are considered full time, no matter how many hours you work, as long as you carry out your job description on each day of the week during which you have agreed to work as part of your employment contract.

This is, of course, complete speculation on my part. Regardless, if you feel concerned about the timekeeping errors, then you may want to inform the employer's payroll department in writing, so that it is aware of the amount of time that you are actually working (i.e., keep your own log and submit it as a routine to the employer). That way, if there is ever a dispute centering around your hours worked, you can refer to your log, and the fact that you sent it to the employer, with your concern that the employer's timekeeping is in error.

This type of evidence could make a difference in the event that your hours worked becomes the center of a dispute. From what you have disclose here, I don't see that the number of hours worked is relevant -- though, it's better to be safe than sorry.

Please let me know if my answer is helpful, or if I can provide further clarification or assistance.

And, thanks for using!
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