Firm Must Pick One: Exempt or Not
Question: I am a salaried professional working for a large national corporation. The company schedules nine-hour shifts and pays me for eight. Because of decreased sales, it is trying to save by scheduling shorter shifts and paying only for the hours worked.
Can it do this? I thought salaried employees got the same salary whether they work 80 or 40 hours.
--A.D., Anaheim
Answer: Your company can’t have it both ways.
As a professional, you fall under the “white-collar” overtime exemption. Your employer can therefore avoid paying overtime premiums by paying you a salary.
Alternatively, your employer can choose not to take advantage of the exemption, paying you for the actual hours worked. In that case, you would be entitled to overtime when you work more than eight hours a day or 40 hours a week.
Because your employer is paying you on an hourly basis, you are not receiving a true salary, which is one of the requirements for the “white-collar” exemption. You have become a nonexempt employee entitled to overtime premiums, paid rest breaks, meal periods and other benefits for nonexempt employees under federal and state law.
--Joseph L. Paller Jr.
Union, employee attorney
Gilbert & Sackman
Hours Worked While Traveling for Company
Q: On occasion, our company has sent hourly workers on service calls out of the area. These often require flying to another city on a trip that can last more than 24 hours.
One employee left his home in the evening, caught a late flight and reported to the work site at 7 a.m. the next morning. He then worked six hours before returning to the airport to wait for four hours for the next flight out.
What are the legal requirements for paying an employee if he is on a business trip for these extended hours that include nonworking time?
--C.S., Anaheim
A: Assuming the employee is nonexempt, he or she is entitled to receive pay for any hours actually spent doing work for the employer.
In addition, he or she is entitled to compensation for any travel time that occurs during the employee’s normal working hours.
Thus, if the employee’s normal hours are 9 to 5, and he or she travels from 4 p.m. until 7 p.m., the worker would be entitled to one hour’s pay for the travel from 4p.m. until 5 p.m. but not for the travel occurring after the end of the normal workday.
If the employee was doing some work related to the employer’s business from 4 p.m. to 7p.m. on the plane--such as reviewing work plans or information about the customer being visited the next morning--the worker would be entitled to receive pay for the entire trip.
--Michael A. Hood
Employment law attorney
Paul, Hastings,
Janofsky & Walker
Returning to Work After Surgery
Q: I work at a school district office in attendance auditing. I spend most of my time at my computer, reconciling reports, and on the phone with personnel at the school sites.
When I scheduled foot surgery I believed I would miss two weeks. I planned to return to work after that, as long as I could keep my foot elevated as the surgeon had advised.
After 10 days of recovery, I was cleared to return to work for four hours a day, with my foot elevated. My immediate supervisor notified me that her director said employees may not return to work with any restrictions because the district would be liable if, for instance, I tripped.
Can I be prevented from returning to work with the conditions noted by my doctor?
--R.R., Orange
A: Employers may not discriminate against their employees based on physical disabilities. They also must make a “reasonable accommodation” to assist those employees in performing workplace duties.
The expenses employers incur may be limited by such factors as the firm’s financial resources, the nature of the employee’s disability and the extent to which office procedure or production is affected by any accommodation.
Employers also have a duty to take reasonable steps to ensure a safe workplace for their employees. Thus, it would be illegal for an employer to prevent you from working because of potential liability if you tripped.
If this policy were taken to the extreme, it could preclude people in wheelchairs or even those with glasses, for example.
Ask your employer to justify its policy. Explain your position in writing. The school district may be able to cite some legal exception to the general rules I have explained, although I could find no such exception.
If the district does not change its policy, you could consider filing a complaint with the California Department of Fair Employment and Housing.
--Don D. Sessions
Employee rights attorney
Mission Viejo
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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.
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