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I requested my employee pay status (exempt or nonexempt) in writing. How long does my boss have to legally respond to me?

Hayward, CA |

Me and my coworkers have been working here for a long time (I started Feb 2008, coworker has been here since 2003). We are suppose to be salary but hours are deducted from our check when we miss time for Dr's visits & or if we miss a day. I am never paid overtime; however, paycheck is docked when hours are missed. We do not have an HR dept., but we are not allowed to speak to our boss's payroll company to inquire about our vacation & sick time. Our boss told the payroll company not to speak to us if we call them. He tells us what our vacation/sick time is but we don't know if he's truthful.

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Attorney answers 7


My general opinion is as follows:

Technically, if you have paid sick or vacation time, you should be able to use that time at your discretion. However, you should refer to your employee manual, if one exists, to determine if there are limitations on your ability to use vacation days. Finally, if you are out of sick or vacation time, your employer can withhold wages since you didn't work, and technically, your employer is not required to provide you paid vacation or sick days.

Please keep in mind that the purpose of my commentary is solely to answer questions on AVVO for individuals seeking general answers to their legal questions. My answers do not create any attorney-client relationship between myself and the individuals whose questions I am answering. Further, my answers constitute my general opinions, not specific legal advice to the recipients of my answers. The recipients of my answers should independently seek legal advice and not rely on any general opinions I provide here.


Whether you are exempt or nonexempt from overtime and meal/breaks, etc. is based on what your duties are. An employment law attorney will be able to analyze whether you are exempt or nonexempt after you provide details about your duties. IF your employer has policy of deducting earned PTO or vacation time or sick time when you miss hours or days, it is lawful to do so even if you are paid on a salary basis. You should contact an employment law attorney. Many of us offer a free initial phone consultation.


Many employers try to avoid paying overtime by treating employees as salaried, except when it benefits them not to, such as by docking an employee's wages if they miss some hours worked. They cannot have it both ways. Either you are exempt from overtime or you are not. The primary consideration in this regard, is what your job duties are during the majority of the workweek. You have not provided that information, so there is no way to offer an opinion. You also must be making, at least, two times the California minimum wage, which is currently $8.00 an hour.

From your description, your employer is trying to keep his employees in the dark about their rights and fringe benefits. This is a huge red flag indicating that he is not complying with California labor laws. I strongly suggest you make an appointment to consult with an employment law attorney, in your area, to discuss the entire circumstances of your employment. You may be surprised about what you are going to hear.

They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.


You do not say what your job is. Some jobs are exempt from having overtime laws. Look at this site:
If you do not feel like you fit into any of these categories, you may be entitled to overtime. If you are, you and your co-workers should contact a California Employment Attorney. If you are not sure, you should still contact an attorney. It is possible you are entitled to back wages.
Pamela Pitt


Technically, your boss has no legal duty to tell you what your pay status is so don't hold your breath on that one. Furthermore, what he says would not change anything anyway. You are exempt or non-exempt based on objective factors set forth in the Wage Order that applies to your industry.

You and any of the others interested in determining if there is a legal basis for a claim should consult with local counsel.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.


You have received some excellent responses. I write only to add that, even if you were exempt at one time, your employer may have unintentionally changed you to non-exempt through his actions.

Exempt employees are not entitled to overtime pay. If, however, the employer docks the employee's wages for time missed, or otherwise treats the employee as non-exempt, the employer may expose itself to liability for the overtime it has not paid. As Mr. Kirschbaum correctly noted, the employer cannot have it both ways.

I hope this information is helpful to you.

Craig T. Byrnes

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.


If your boss has a pattern and practice of reducing your weekly SALARY because of full or partial day absences due to sickness, doctor visits, etc., (as opposed to reducing your vacation pay bank or sick pay bank), then:

I would argue that your employer has blown the overtime exemption, and that you (and others in the same boat) are entitled to overtime pay. I feel confident that California law and federal law support my position.

You should call an experienced employment lawyer for a closer look.

Best regards,

David A. Mallen

David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.

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