Legal Question in Employment Law in California

Hello. I have worked at my company for six years. All of a sudden my boss decided to get a time clock. When I worked over 40 hours he said we dont pay overtime unless its approved. Which is fine with me in a sense. He said we are salary. That he is not paying me for my overtime because overtime has to get approved and legally he doesnt have to pay me for 8 minutes or so that i worked over each day. That there is a law that says it has to be over a certain amount of time. He also told me he isnt going to add up the time on off our timeclocks to pay us. And its only for him to see and to see peoples habits. If Im salary why in the past would i have to make up hours if I had an appt. so I took a longer lunch. He stated we have to work an 8 hour day. Is that true? I always thought if your salary you wouldnt have to make up a couple of hours here or there. Please advice me if he is correct. Or if he can request after all these years that he is getting a timeclock and only to see peoples habits. Thanks.


Asked on 2/04/10, 4:09 pm

1 Answer from Attorneys

Michael Kirschbaum Law Offices of Michael R. Kirschbaum

There is nothing wrong with an employer keeping a time clock to check on salaried employee's productivity but there may be some larger issues going on here.

First, you should know that employers don't get to decide who gets paid a salary and who an hourly wage, just because they say so. The law decides which employees are regarded as exempt and non-exempt from overtime rules, based on the jobs they do. And most employees are presumed to be hourly, subject to overtime, unless they fall into one of the legally recognized exemptions, often referred to as "white collar" exemptions, which are typically, professional, managerial or administrative, with some other minor exceptions. If you do not fall within one of these exemptions, employers must pay for overtime worked, whether authorized or not.

If an employee works only a few minutes overtime, it is okay for the employer to round off the time to the nearest hour in its favor, as long as it also rounds it off in the employee's favor if the employee is short by a few minutes. It cannot all work in favor of the employer. And if the employer docks an employee's "salary" because the employee takes a couple of hours off for a doctor's appointment, this is recognition that the employee is not really paid a salary in the first place and the employer may lose the claimed exemption.

You do not describe your job function, so it cannot be determined whether you are exempt from overtime rules. If you wish to explore this further, you should consult with an experienced employment law attorney in your area.

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Answered on 2/09/10, 4:42 pm


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