California Employment Law

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I just started a new job. I'm an exempt employee (director…

Hi. I just...

Hi. I just started a new job. I'm an exempt employee (director level) - in a professional job/company (mon-friday). we are paid in 24 pay periods per year - 15th and end of month. I started on the 21st of may - and received a paycheck on may 31. I'm not convinced my company calculated the proration correctly. I live in state of CA. Can you confirm the formula which should be used? They used calendar days vs. work days to calculate my check. Is that accurate? I thought they needed to use work days to do calcuation

Lawyer's Assistant: Have you discussed this wage-and-hour issue with a manager or HR? Or with a lawyer?

Will speak with them on monday looking for industry validation have done quite a bit of research - cannot find anything saying "industry standard" is to use calendar days

Lawyer's Assistant: Are you an "at will" employee? Do you belong to a union?

Yes at will

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Answered in 35 minutes by:
6/1/2018
Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 14,560
Experience: Significant experience in all areas of employment law.
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Hello and welcome to Just Answer. My name is ***** ***** it will be my pleasure to answer your question.

The applicable language from the Fair Labor Standards Act is as follows: "An employer is not required to pay the full salary in the initial or terminal week of employment. Rather, an employer may pay a proportionate part of an employee's full salary for the time actually worked in the first and last week of employment. In such weeks, the payment of an hourly or daily equivalent of the employee's full salary for the time actually worked will meet the requirement." 29 CFR 541.602

You will note that the law does not specify the method by which the "proportionate part" be calculated. One federal district court addressed the precise question you raise here--whether calendar day proration is permitted under the rules. The court held that the calendar day method was permitted and the plaintiff lost their case.

It is true that calendar day proration is less common, and to be honest, unfair because it results in a less exact method of proration that may not take into account the number of days actually worked by the employee. However, given the above case (albeit from a different jurisdiction though still interpreting the same federal rules) and the lack of any specific instruction within the FLSA regarding how to prorate salaries, a lawsuit would likely be a poor idea--even more so given that the amount at issue here is small relative to the harm that a lawsuit or wage claim would cause to your employment relationship. For these reasons, if it were me I would let it go.

I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.

* Disclaimer *

Just Answer is a venue for informational and educational purposes only. No attorney-client relationship is formed by these communications, and the information provided is not legal advice.

Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 14,560
Experience: Significant experience in all areas of employment law.
Verified
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Customer reply replied 2 months ago
thank you. This was helpful. No intent to sue -- simply wanted to understand best practice. When I look at oracle, zenefits and other payroll software write-ups on how they pay - they seem to recommend work days. But helpful to understand the feedback you have provided. Essentially - anyone can do anything - just up to the company. Any last suggestions on where I could find best practices? I was looking at HR forums -- found a couple write-ups there - which also refer to work days. If no - no worries. I'm good.
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