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Can an employer deduct a half day pay if a salaried employee and I goes home sick early? How about requiring an unpaid day off?

San Diego, CA |

My employer sent a memo out today that we are required to take Dec 24 off. Offices are closed. And Salaried employees are required to either use PTO or take an unpaid day. I am am not yet eligible for PTO, was planing to work that day, but am now forced to take an unpaid day. Also, if I am salaried and don't have any PTO, can my employer deduct a half day for going home sick after 4 hours? The policy here is if you are Salary, you have to work at least 5 hours a day to get a full day pay, otherwise, you have to take unpaid or paid time off. For any reason. This is not what I understood Salary to mean. Also, days when I have worked, checked email from home, etc, I did not get paid, and yet working over 40 hours in other weeks, I get no overtime, because I am 'salaried'? This okay?

Attorney Answers 3

  1. As a salaried employee, your pay should not fluctuate from week to week. Your post raises a few questions so I will answer them in turn. First, an employer must pay salaried employees the same salary per week, meaning that if a holiday falls during the week, the employer is generally required to compensate the employee for that day of work. For holidays, your employer should not force employees to use vested PTO, though not all PTO may be vested depending on how it is characterized.

    Second, an employer can apply sick time to a half day of work and deduct as a result, provided the pay is the same. If you are exempt, and do not have sick time accrued but take an hour or two off for a doctor's appointment, your employer is required to pay you the same salary as every other week.

    Finally, if you are properly classified as an exempt then you would not be entitled to overtime pay regardless of the hours you work or if you work from home. However, if you are not properly classified, then you would be entitled to compensation for such work. Consult with an employment attorney about all of your options.

  2. First of all, playing an employee a salary is not a valid excuse to deny overtime. An employer may only pay a flat salary regardless of the number of hours an employee works if the employee's position is properly classified as EXEMPT. See here for an incomplete summary of the common exemptions:

    If you are not an exempt employee, the law presumes that your salary compensates you only for a standard 40 hour work week. Hours worked in excess of that must be paid, and paid at an overtime right.

    With regard to deducting from your salary, if you are overtime exempt and paid a flat salary your employer may NOT deduct from your wages for a partial day absence or for a business closure of less than one week (though FULL day absences for personal/health reasons and business closures of more than one week may lawfully form the basis for pro rata salary deduction). To deduct from an employee's wages, or to require an employee to use PTO to "pay themselves" for a partial day absence or single day business closure, amounts to an unlawful labor practice.

    It sounds like your employer may be violating several labor laws, and so an individual in your circumstance would be extremely well served to consult with a local attorney to determine your rights. This is a complicated area and it helps to get the advice of a knowledgeable professional. Most attorneys offer free consultations, so there is really nothing to lose from looking into this further and exploring your options.

    Very best wishes to you.

    This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.

  3. You've received two solid answers already; Mr. Phillips' response is especially clear. I write to add that in these economic times, even if your employer violated the law, there may be many reasons not to do anything about it just now. Taking action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about unlawful pay practices, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking retaliatory action in the first place. You may find yourself out of a job in this terrible economy and unable to find a replacement. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.

    There is an alternative, though it involves waiting. California law requires an employer to pay an employee all accrued wages, vacation, PTO, and ascertainable commissions AT THE TIME the employer ends the employment relationship. If the employee quits without advance notice, the employer has 72 hours to make this payment.

    If the employer does not pay as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit.

    So when your employment with this employer ends you can pursue a wage claim or lawsuit if you are not paid everything as required, provided you are still within the time limit (see below).

    You will need documentation to support your case. Keep your documentation at home, not at work, to make sure it remains private and doesn't disappear. For documentation:

    For every work day, keep a log of all your work time, including the time you start working, the time you stop working, and the start and stop times of any breaks (meal or rest). Time spent walking to or from a time clock is considered work time, not break time. Many people find it helpful to keep this information on a calendar.

    For every work day, keep track of the actual work duties you perform and how much time you spend on each duty (to establish whether you are or are not truly exempt).

    When you are ready: The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: You have THREE YEARS from the last day of work to file a Labor Commissioner claim for unpaid wages.

    If you pursue a lawsuit in state court, you have the potential to recover unpaid wages going back FOUR YEARS (instead of three) from the date you file suit, per Business & Professions Code sections 17200 et seq.

    Your best bet is always to consult one or more experienced employment law attorneys with whom you can discuss the details of your situation and go over your time limits. Please do not rely on general information from a public site such as Avvo.

    To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is Click on "Find a CELA Member" and you can search by location and prac

    * * * PLEASE READ: All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. * * * Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. * * * No attorney-client relationship is created based on this information exchange. * * *

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