Legal Question in Employment Law in California

i have a 2 part

1. I am an exempt employee i was out of work twice per doctor order for a week each time. I worked from home one of the weeks and have worked MANY HOURS from home and on weekends after work and my employer randomly deducted 1/4 of my last paycheck saying it was for negative sick pay. can they do this?

2. due to illness my doctor has issued sick leave. i asked if i could work form home , employer said they do not allow that even though they clearly have do . employer denied fmla and put me on mandatory 30 leave no pay, has stated they will not guarantee job after due my unreliability due to illness and they have taken back my laptop, (which was part of my offer package at hire) and all company access this does not seem right ?

Asked on 7/25/13, 12:48 am

2 Answers from Attorneys

1. As an exempt employee, you are entitled to the same set salary each week, regardless of the quantity or quality of work performed. There are exceptions to this rule, however. For example, if you absent yourself from work for an entire day for personal reasons (e.g. due to an illness or vacation), your employer may deduct a full day of wages from your pay. But if you perform ANY work at all during the day, your employer must pay you for the entire day. And, your employer may not just "randomly" deduct an arbitrary amount from your paycheck; there must be some correlation to the number of full days you took off.

Of course, California wage law is very complex, especially when it comes to the treatment of exempt employees, and there are exceptions to the general rules I have described. You should speak to an employment attorney ASAP regarding your specific situation.

2. Whether you qualify for leave under FMLA (or CFRA, the California state law equivalent) is not up to the company's subjective judgment. There are specific criteria set forth in the statute that determine whether you are eligible for leave and whether your employer must guarantee your job when you return. Again, you should definitely contact an employment lawyer immediately regarding your situation to discuss your options.

Tuvia Korobkin, Esq.

Eisenberg & Associates

3580 Wilshire Blvd. Suite 1260

Los Angeles, California 90010

(213) 201-9331

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Answered on 7/25/13, 6:33 am

Terry A. Nelson Nelson & Lawless

As to wage and hour claims, yes, the employer can deduct pay when you are out on extended absence of full days or more, just not for a few hours missed here and there.

The employer does not have to allow work from home, but if you do, then you are entitled to full pay.

If your CA employer has at least 50 employees, and you are employed for at least 12 months and have at least 1,250 hours worked in the 12 months prior to the leave, then you would be eligible for 12 weeks of unpaid FMLA / CFRA medical leave when you are unable to work [or must care for an immediate family member] because of a ‘SERIOUS health condition’, continuation of any group health benefits, restoration to the same or an equivalent job upon return to work, with any accrued benefits. The employer can require you to use all accrued unused vacations and leave[s] as part of the 12 weeks, so as to make that portion 'paid'.

Now, if they violate those rules, contact me for the legal help you'll need. I'll be happy to do so. I've been doing these cases for over 20 years.

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Answered on 7/25/13, 9:47 pm

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