Docking Salaried Employee for Sick Days May Be Illegal

Q: My wife works as a service advisor for a large auto dealership and is paid a salary plus commission. When she is sick, they dock her 1/30 of her monthly gross. However, when she works an extra day they do not compensate her. Is this legal?

--G.K., Huntington Beach

A: The auto dealership is violating the law if it regularly docks your wife a day’s pay when she misses a day’s work because of sickness. A pattern of violations of this kind may have consequences far beyond the recovery of a day’s pay--your wife may be entitled to recover straight-time wages and overtime pay that she was denied as a salaried employee.

Your letter states that your wife is paid a salary plus commission. Your letter does not provide enough information to determine whether your wife was properly classified as a salaried employee. But even if your wife performed exempt duties, the auto dealership has probably lost the benefit of the “white collar” exemption by failing to pay her a true salary.

Under state and federal regulations, salaried employees must receive full salaries if they perform any work during the salary period, without regard to the number of days or hours they actually worked or the quantity or quality of the work performed.

These employees must be paid full salaries if they are absent for less than a day for any reason or for a day or more because of sickness or an accident. (Government employees are subject to different rules.)

There are a number of twists to this rule. For example, if salaried employees are absent for a day or more for personal reasons unrelated to sickness or an accident, deductions can be made from their salaries. Similarly, salaried employees are not entitled to any pay when they are absent for a full workweek because of sickness.

In some circumstances, an employer can dock for sicknesses or disabilities lasting a day or more if the employer maintains a plan, policy or practice of paying compensation for the loss of salary caused by such absences.

In your wife’s case, she is entitled, at minimum, to recover the amount she was docked for each day’s sickness. Depending on the dealership’s overall payroll practices, however, there is a good chance that your wife was misclassified and should not have been paid as a salaried, exempt employee.

This would entitle her to pay for every hour worked, plus overtime pay at 1 1/2 times her regular wage rate when she worked more than eight hours in a workday or 40 hours in a workweek, and double her regular rate when she worked more the 12 hours in a workday.

For some overtime violations, your wife may also be entitled to double damages. She also will be entitled to interest, attorney’s fees and court costs if she prevails.

For more information, your wife should review the dealership’s payroll practices with an attorney or the California Labor commissioner.

--Joseph L. Paller Jr.

Union-employee attorney

Gilbert & Sackman

Fired for Falsifying Application

Q: Can employees be fired after five years at a plant for falsifying their employment applications? We think they were unfairly singled out.

--E.M., Pico Rivera

A: The falsification of an employment application will, under many circumstances, constitute sufficient grounds for termination. If the employer knew about the falsification five years ago, the terminated employee may be able to argue that it is unfair to be terminated now. But this is a weak argument.

Your question also states that your co-workers feel they have been singled out. If your co-workers can establish that a number of employees have falsified their applications yet only certain employees in a protected classification were terminated, your co-workers may have a discrimination claim.

For example, if the employer has chosen only to terminate disabled or Catholic employees who falsified their applications, these terminated employees should go to either the state or federal antidiscrimination agency and explain their situation.

--Diane J. Crumpacker

Employment law attorney

Fried, Bird & Crumpacker

Paying Spouse’s Health Premiums

Q: My wife was added to my health insurance at work. I was never informed of the cost of her premiums, so I assumed it was being paid by my employer. In July, my employer discovered that I had not been paying my wife’s premiums. Now, I am told I must pay that plus $360 a month until the back premiums are paid up. Is this legal?

--D.Z., Glendale

A: Your employer is not required by law to provide free health insurance for employee spouses.

If you want your spouse to be covered, you will have to pay the premiums. If you don’t reimburse the employer for the previous premiums, the employer is not obligated to allow your wife to be covered in the future. One way of looking at this is that the employer gave you an interest-free loan on the premiums for the previous months, so you had the use of that money for those months.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or, e-mail it to shoptalk@latimes.com