Legal Question in Employment Law in California

Pay

I work for an automotive dealership in CA. I am a salaried manager responsible for 2 departments, Parts and Service. I was taken ill starting back in June of this year. Since I have gone on temp disability after being hospitalized. It is my understanding of Federal Code Title 29 Sec 541.118 that since my employer does NOT have a bona fide sick pay plan that I am entitled to full salary during my illness. My question is multipart:

a) Have I understood the law right?

b) And if so what are my employers obligations in terms of length of time and how it is effected by CA state disability benefits.

Due to my employers failure to pay my salary I was forced to file for state disability benefits. However I only worked a total of 5 days during the month of June but because of the spacing of those days I was refused payment by the state due to the 7 day waiting period. Hence my disability payments did not begin until July 7, 1999.

Now it has come to my attention my employer has hired a new Parts manager thereby replacing me permanently at least partially. Can they do this?

Thank you,


Asked on 8/28/99, 2:08 pm

1 Answer from Attorneys
Thomas Pavone Pavone & Cohen

Re: Pay

a) No. As a salaried exempt employee, you are entitled to full pay for any work week in which you actually perform work. If you perform no work during a work week, you are not entitled to any pay.

b) Several issues are raised here. 1. By the spacing of your work days, it sounds like you may have worked in most of the weeks during the month of June. You are entitled to full pay for those weeks in which you worked.

2. Unfortunately State Disablity punishes the worker who tries to return to work. 3. As to leave of absence time, if the employer employs more than 50 employees, CA and Fed law entitle you to up to 12 weeks of leave (without pay, but with continuation of health insurance benifits), and reinstatement to your former job. There are exceptions as to top wage earners of a company, allowing an employer to claim a hardship. If less than 50 employees, CA and Fed law prohibit discrimination on the basis of disability. These laws also require accomodation for disabilities. A Leave of Absence is a type of acccomodation. There are no clear time limits for a disability accomodation leave. However, a medical condition must affect a major life activity (walking, seeing, breathing etc. to qualify as a disability under these laws. 4. As to the replacement, the employer may continue to operate. Your claim must be analyzed at the time you are able to return to work.

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Answered on 9/08/99, 2:41 am


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