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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 12801
Experience:  Significant experience in all areas of employment law.
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If I have an employee working a night shift and he works a

Customer Question

If I have an employee working a night shift and he works a total of 5 hours per day 6 days a week, and he is asking for a helper which will decrease his hours to aprrox 3 hours per day 6 days per week, do I have to pay him the same salary, if he has a helper?
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: California
JA: Is the employment agreement "at will," union, full time or part time?
Customer: full time no union
JA: Anything else you want the lawyer to know before I connect you?
Customer: no
Submitted: 10 months ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 10 months ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

When you say that you are paying the employee a "salary," does that mean you are paying them the same flat rate of pay regardless of how many actual hours they work? What kind of work are they actually doing? I very much look forward to helping you on this matter.

Customer: replied 10 months ago.
The current nightshift employee is making a $600 flat rate weekly salary for 40 hours per week. Right now he is only working 30 hours per week. With a helper he will cut down to 20 hours per week. We launder mops for hospitals. He has one account to work and he goes up on all the floors to collect the dirty mops to bring back for laundering. This is a big hospital.
Expert:  Patrick, Esq. replied 10 months ago.

Thank you.

There is nothing unlawful at all about cutting an employees pay because they are working fewer hours or because they have help. So, to answer the question you asked, you do not need to pay the same salary if the employee now has a helper.

The above noted, I do want to point something out about paying employees on a salary basis which is that unless the employees qualify for a statutory exemption from overtime (and the type of work you are describing would not seem to qualify for such an exemption) the employee must be paid overtime for any hours worked in excess of 8 per day, 40 per week, or for any work performed on the 7th consecutive day of the work week (i.e. if they work Sunday through Saturday, they must be paid overtime for all hours worked on Saturday). Paying your employees a salary does not get you out of this obligation. Since you must pay overtime if the employees work enough hours to qualify, it naturally follows that you must keep track of all the hours your employees are working--otherwise you have no way to know if you are actually complying with the law and no way to defend against an overtime claim if you are sued.

Since you really need to be keeping track of all hours actually worked, it generally make far more sense to pay employees who don't qualify for overtime exemptions hourly rather than salary. Of course, you are free to continue doing what you are doing provided you pay any applicable overtime, but this is just a thought as it could streamline your payroll.

If I can clarify anything at all for you, please do not hesitate to ask. It is my pleasure to assist you further if necessary....

Expert:  Patrick, Esq. replied 10 months ago.

Was there anything else I can do for you?