Salaried Employees May Not Be Docked for a Partial Day
Question: The company I work for has about 100 employees. Some are punch-clock employees, some are salaried with overtime and some receive a straight salary.
The owner has decided to install a new thumbprint punch clock, and all employees are expected to “punch” in and out. The word is that those at the director and vice president levels will be penalized if they work 35 hours one week, instead of 40-plus, even if they worked 60-plus the previous week. Is this legal?
--S.H., Santa Monica
Answer: To qualify for the “white-collar” overtime exemption, employees in California’s private sector must spend more than half their work time performing executive, administrative or professional duties.
They must be paid monthly salaries of at least $2,166.63--twice the current minimum wage of $6.25 an hour multiplied by 173.33 hours, the number of hours a full-time employee normally works in a month.
Exempt employees also must be paid a true salary--it should not vary based on their productivity or on the number of hours they work. The idea is that salaried employees are paid for the overall value of their services, not for their time.
For this reason, employers may not dock salaried employees for being absent part of a day. In fact, exempt employees must receive their full salaries if they perform any work during a workweek, with three exceptions:
* They can be docked for absences of a full day or more for personal reasons (not for sickness or an accident).
* They can be docked a day or more for major safety violations.
* They can be docked for full days of sickness or disability if the employer or an employer plan provides compensation for salaries lost due to sickness or disability.
But although an exempt employee can’t lose pay for coming to work late or for leaving early, an employer can legally demote, discipline or even discharge an exempt employee for tardiness or for departing early.
In addition, an employer can require exempt employees to punch a time card just like hourly workers, provided the employer does not vary their salaries based on the hours they missed.
Although an employer need not pay exempt employees overtime for extra hours worked, it is not unlawful to do so, provided the employer complies with other requirements of the white-collar exemption.
--Joseph L. Paller Jr.
Union, employee attorney
Gilbert & Sackman
Employee’s Recourse When Paycheck Is Lost
Question: I was terminated as a waitress because my new manager and I failed to see eye to eye on many subjects.
I received a final paycheck, but unfortunately lost it. I immediately called my former boss and asked if he’d please reissue the check, and I would pay for the stop payment fee. He said he’d check into it.
After several weeks waiting for a return call, I called again and he said the check had been cashed.
I did not cash the check. I asked him to send me a copy of the canceled check, but he refused and will no longer take my calls.
Is there anything else I can do, or am I out of luck?
--M.H., Mission Viejo
Answer: When you receive cash or a paycheck, you are responsible for it. If you lost it and it was cashed by someone else, you should not have a claim against your employer, who should not have to pay twice because of your negligence.
However, you need to be sure someone has cashed your check. You have a right to inspect your personnel file and any records dealing with your paycheck. Your employer is required to provide you with copies of those relevant documents, including proof of payment of the check upon a reasonable request from you.
Consider putting your request for a copy of the canceled check in writing. Threaten legal action if your manager does not cooperate.
--Don D. Sessions
Employee rights attorney
Mission Viejo
When Human Resources Chief Is Indiscreet
Question: The company of more than 100 employees that I work for has as its president of human resources an unprofessional person who has the job only because her brother is vice president of the company.
Many of us have caught her saying that she plans to have a certain person driven out of the company, leaving employee probation notices on the photocopier and gossiping about employees.
Do we have any legal rights to have a discreet person heading this department?
--A.E., Los Angeles
Answer: An employer is under no legal obligation to employ only persons in the human resources department who behave discreetly and professionally, but it makes terrible business sense not to do so. The purpose of having a human resources department is to provide employees with a resource they can trust to obtain information and to go to with problems.
You may wish to report this sort of unprofessional behavior to the company’s president or chief executive. You can report it anonymously, but be sure to include enough specifics regarding dates, times and words spoken so the report will seem credible and prompt the company to investigate.
--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.
