Exempt Status of Salaried Workers Must Be Honored
Q: Where can I find the official state definition for salaried personnel? My current employer has all office staff as salaried, working 50 hours a week plus Saturdays. If you miss a day, you are docked.
Most of us do what is considered clerical work. I believe the classification is not correct, but need documentation.
--M.R., Long Beach
A: One of the greatest misconceptions in the workplace is that if you are a salaried worker you don’t qualify for overtime compensation.
Although a salary is one requirement for being “exempt” from overtime laws, there are additional criteria. Your duties must be considered administrative, managerial or professional. Even if the employer can show that you fulfill those requirements, the company must maintain your exempt status, or lose the opportunity to claim you as exempt from these rules.
Docking you for a missed day of work is inconsistent with your salaried status, in which you work as many hours as it takes to get your job done. By docking your pay, your employer may have lost the salary exemption for you and may owe you overtime compensation for hours worked more than 40 in a week or eight in a day. It could be a substantial liability.
The definition of salary status is included in the California Labor Code, appropriate wage orders, cases interpreting the laws and the federal Fair Labor Standards Act. Because the applicable regulations depend on your specific job and industry, you might consider contacting the California Division of Labor Standards Enforcement for more assistance.
--Don D. Sessions
Employee rights attorney
Mission Viejo
‘Use or Lose’ Policy on Accrued Vacation
Q: I accrue three weeks of vacation per year. My East Coast employer recently sold the business, and the new owners have changed the vacation policy allowing employees to carry over no more than one week from year to year.
This policy was announced and put into effect with six weeks left in the year. I have accumulated more than five weeks of vacation and must now take 23 days before 2001 or lose them. Can the company force this change on employees with such short notice?
--J.T., Los Angeles
A: No. It is unlawful for an employer to require employees to “use or lose” accrued vacation.
It is permissible for employers to place caps on how much vacation can be carried over to the following year. The company can dictate that an employee who has accrued the maximum amount of vacation will not accrue any more until the current balance is reduced. But it can’t take away vacation that an employee already has accrued. Alternatively, an employer can pay an employee for vacation days not used by the end of the year. This may be a wise move to avoid having the entire work force take off during December.
Your employer could legally force you to use up all of your vacation, with pay, before the end of the year. If not, you must be paid for the unused portion or allowed to carry it forward into next year.
--James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
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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. Recent Shop Talk columns are available at https://www.latimes.com/shoptalk.
