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SHOPTALK / Orange County

Worker's 'Salary' Basis Determines Sick Leave

January 31, 1999

Q I work for a company that does not pay overtime to exempt employees. Because of deadline pressures, I often work more than 40 hours in a week. But when I wanted to take off a couple of hours early one day I was told I had to take either vacation or sick time.

It seems to me the company has it both ways. It expects overtime from its exempt employees but requires them to use their vacation/sick time if they want to take off a few hours early.

Is this legal?

--R.B., Long Beach


A Yes. State and federal law provide that, to be exempt from overtime, in addition to meeting the specific requirements for the executive, administrative or professional exemption, an employee must be compensated on a "salary" basis.

This means that the employee must be paid a set salary for a given period regardless of the number of hours worked. The employee need not be paid overtime, but cannot be docked for time missed, either.

There is an exception to this rule for bona fide sick pay plans. If an employer provides paid sick leave, time missed by an exempt employee can be charged against accrued sick leave, even in partial-day increments. Therefore, your employer can require you to take sick leave if you miss work.

--James J. McDonald Jr.

Attorney, Fisher & Phillips LLP

Labor law instructor, UC Irvine

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