Legal Question in Disability Law in California

Conflicting Laws

My employee has informed me that because of the ''state's'' fair labor laws that since I am salaried that if I don't work the total hours stated in a pay period (80 hrs.) that the company has to ''makeup'' the difference. I have 2 conditions which puts me under the Americans with Disabilities - Received SSDI for 2 yrs before I decided to go back to work - my choice - since then developed another disablity. All that I had was those periods that I was out with the disability that I be allowed to work over the next period (at straight time) to complete my required work. Because the company according to the state law had to ''makeup'' the difference in my pay for the periods I was sick. They told me that I would no longer be salaried but hourly and that I would not be allowed to work any hours over but I would still be required to maintain the workload. So in effect if I was only able to work 70 hrs one period the next period I would have to perform 90 hrs worth of work in 80hrs the next period. Is this legal when conflicts existing between state and federal employment laws?


Asked on 3/13/08, 12:04 am

1 Answer from Attorneys
Terry A. Nelson Nelson & Lawless

Re: Conflicting Laws

Your question is less than clear. If you go on unpaid disability leave, then you are 'unpaid' whether salaried or hourly. The term 'makeup' is not not clear. If you can't/aren't working full time because of a disability, then the company policies determine your position and pay rates. If you are saying the company maintains you as salaried, and requires you to 'makeup' work in one period you missed in another, then that may be allowable, that is sorta the definition of salaried - work as much as required to do the job; you're not limited to 40 hours on salary. 'Accommodation' of a disability has to be factored into those decisions. If they are improperly denying you accommodation, then you may have a claim.

If you're saying they changed you to hourly from salaried because you can't/aren't working full time, that may be allowable, maybe not. If you can show they are improperly failing to accommodate you or are 'retaliating' against you for the leaves and needed accommodations, then you may have a claim.

If you think you have a claim for failure to accommodate or for retaliation, feel free to contact me with a sufficient description of the situation for me to understand what is going on.

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Answered on 3/13/08, 1:21 pm


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