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Employee Not Required to Pay Back Disability

September 03, 2000

Q: I recently had surgery and went on disability. During my recovery time, I received a job offer from a company where I had applied previously.

Can I quit my job while I'm on disability and can my present employer legally request that I pay the company back any of the disability money I received?

--W.S., Irvine

A: Disability benefits in California are provided by the state and funded through a system of employer and employee contributions. Therefore, you can quit your job and your present employer cannot require you to repay the disability benefits you received.

If you are not planning to return to your old job, you should notify your employer, so that the company can arrange to fill your position.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Status Threatened by Nonexempt Rules

Q: I am a salaried, exempt employee and am required to punch a time card. Also, I have been told verbally by the human resources director that I have to work at least five days a week and a minimum of 40 hours a week.

If I work fewer than 40 hours, I must make up the time within the same pay period. However, if I work more than 40 hours, I do not necessarily earn compensatory time off. Is all of this legal?

--R.K., West Hollywood

A: An exempt employee is paid a set amount for performing his or her job duties, regardless of the time necessary to perform them.

If your employer requires you to punch a time clock like a nonexempt worker, requires you to work specified days a week and a minimum number of hours a week and requires makeup time, it is treating you as a nonexempt worker and risks your exempt status for that pay period as well as previous periods. It could get very expensive for the employer who does not follow the rules for exempt workers.

In some instances, exempt status can be maintained even though the employee is treated in some small respects as a nonexempt employee.

--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, or e-mail shoptalk@latimes.com. Include initials and hometown. This column is designed to answer questions of general interest. It should not be construed as legal advice.

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