A Firm Can’t Have It Both Ways With Exempt Status

Q: My spouse works as an instructor at a computer school. The school trains its employees and considers them salaried. The company sets the work hours and course content.

Employees sign agreements to arrive for work at 7 a.m., one hour before classes begin, and to remain until 4:30 p.m., when classes are scheduled to end. The employees must remain, even if the class completes its material early. Then after the classes end, employees must clean the classroom, removing papers, boxes and food and wiping the board.

This makes for an extremely long work day with no overtime compensation. Furthermore, on days when there are insufficient classes for the instructors, they are often required to help organize the facility--cleaning as well as carrying and removing trash to the outside bins.

When employees don’t work a full shift, however, their pay is reduced unless they can draw from sick days or vacation days. Although my spouse is teaching classes requiring technical expertise, the rest of the job description seems to fit into a nonexempt category.

Can jobs have exempt and nonexempt duties? If so, how is the job classification determined?

--J.H., Huntington Beach

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A: Employees are not exempt from overtime rules simply because they are salaried and an employer says that they are exempt. By law, an exempt employee’s duties must be of a certain nature, and salary status must be maintained for an employee to be considered exempt. Exempt employees include managers, administrators and professionals.

The professional category includes employees who are certified or licensed. Since the school trained its employees, I assume they are not certified by a state agency. Your spouse may be considered an administrator in leading a classroom. Even those who qualify as exempt do not have to fulfill those exempt responsibilities 100% of the time. The exempt status is maintained if an employee performs exempt duties “most of the time” or if the job is essentially exempt in nature.

The employer also must maintain an employee’s salary status to continue the exempt status. An employee who is salaried may work more or less than the specified time requirements, depending upon the demands of the job. If the employer reduces your spouse’s pay for failing to work a full shift, the exempt status may be jeopardized and the employer may have to pay overtime for work exceeding 40 hours a week.

It appears that your spouse is at school for 9 1/2 hours a day (although time taken for a lunch is not counted as work time). If the employer is not complying with salary requirements, it appears that your spouse would have a valid claim for overtime if he or she is working five days a week.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Limits on Outside Employment

Q: I work for a Southern California professional services firm that is planning to limit “any outside employment unless authorized by an executive of the firm.” I had always understood that an employer could restrict outside employment with a competitor, but this policy seems too broad. Is it legal?

--A.Z., Woodland Hills

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A: There is no law against such a limitation, although the law could change in the future.

Your employer may have important reasons for not wanting you to work in another job, even if it does not involve a competitor. Working a second job may make you tired and less productive, for example. A second job may also create obligations, such as phone calls to return, that could interfere with your work performance. There may also be a conflict of interest if your second employer is or becomes a client of your first employer, or if you solicit employees at your first job to buy the goods or services of your second employer.

For these reasons, many employers prohibit outside employment without prior approval, so that the potential for conflicts of interest or diminished job performance may be evaluated.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Sick Pay Requirements Vary

Q: Is it legal for a company not to provide sick time for employees, whether exempt or nonexempt?

--C.L., El Segundo

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A: I assume that you are referring to paid sick leave. For nonexempt employees, an employer has no obligation to provide paid time off for illness.

As to exempt employees, the answer is more complicated.

If the employer has no paid sick-leave policy, it must pay exempt employees their full salary during any week in which they perform services, or it destroys their exempt status under federal law. Therefore, if an employee works two days in a week and is out sick for three, the employer must pay the employee the full salary for that week. If the employee misses a full week, the employer need not pay the salary for that full week, however.

If the employer has a paid sick-leave policy, once the exempt employee has exhausted the sick-leave benefits, the employer may begin making salary deductions for time missed due to illness during a work week.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

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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. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.