Victorville, CA asked in Employment Law for California

Q: What are the guidelines for salary exempt? Scheduling 50 hours not paying for time missed and no sick pay or vacation

The employer tells staff he is paying them for 50 hours of work (salary) only paying for 40 but scheduling 50 hours and there is no paid sick days and no paid vacation so whatever the reason if there is any time missed it has to be made up. Is this legal?

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2 Lawyer Answers
James L. Arrasmith
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  • Sacramento, CA
  • Licensed in California

A: Here are some points to consider:

Salary Exemption: To be considered exempt from overtime pay under federal law (Fair Labor Standards Act - FLSA), employees must meet certain criteria related to job duties, responsibilities, and salary requirements. Exempt employees generally receive a fixed salary regardless of the number of hours worked.

Hours Worked: If an exempt employee is scheduled to work 50 hours but is only being paid for 40, this may raise concerns. Generally, exempt employees are not eligible for overtime pay, but they must receive their full salary for any week in which they perform work, subject to specific exceptions.

Sick Days and Vacation: Paid sick days and vacation time are not federally mandated, but some states and local jurisdictions have enacted laws requiring employers to provide these benefits. You should review the laws in your specific location to determine the requirements.

Time Missed and Make-Up: Deducting pay or requiring make-up time for partial-day absences of exempt employees can affect their exempt status. Generally, if an exempt employee is ready and available for work but misses part of a day due to personal reasons, their salary should not be docked for that absence. However, deductions may be allowed for full-day absences or under certain circumstances such as FMLA leave.

It's important to note that employment laws can vary depending on your jurisdiction, so consulting with an employment attorney is crucial to determine the specific legal requirements applicable to your situation.

If you believe your employer may be violating labor laws, you may want to document any relevant details, such as work schedules, hours worked, and any communication with your employer. This documentation could be helpful if you decide to pursue a legal course of action.

Eva Zelson
Eva Zelson

A: The Fair Labor Standards Act established standards for minimum wage, overtime pay, and youth employment for employees in the US. Some “highly-compensated” employees are exempt to overtime pay under the FLSA. For salaried employees, there is no maximum or minimum requirement for hours worked. Further, employers may dictate the hours worked by employees, including mandatory overtime and the requirement to make up time for absences. As a result, if an employee works more than 40 hours in a week, they are not eligible for overtime pay. If salaried employees take days off, that time will be deducted from their accrued leave or from their pay.

To answer your question, your employer’s practices as you describe them sound like they are legal for salaried workers. But if you have an employment contract for 40 weekly hours, or if you are an hourly employee, your employer must pay you for all time worked. Contact an employment lawyer to review the details of your situation.

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