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Employment Law/CA Labor, Vacation for Salary Employee


In CA, a salaried employee requests a day off for a work related exam, in which the time for that exam is not covered.  The employee subsequently works 37.5 hours from Tuesday to Saturday.  The work week for the salaried employee is defined as Sunday to Saturday.

The company is requiring the employee to use 8 hours of vacation for the day off on Monday, even though that would mean the employee would exceed 40 hours of work for the week.  Is this permissible?


Based on the information provided, I am not entirely clear as to your exact issue.  The following will give you some guidance on what I believe are issues potentially raised by the scenario you present.

1.  You are a salaried exempt employee

If by stating that you are "salaried", you are also indicating that you are an exempt employee under California overtime law (thereby not entitled to overtime pay), the answer to your question is that an employer can generally administer its benefits policies in any manner it deems best.  If salaried, your weekly pay should not depend on the number of hours worked.  While such policies cannot be discriminatory (based on age, race, gender, etc), an employer does have wide latitude and discretion in dictating how and when benefits such as vacation pay can and will be used - including requiring it to be used to cover days not actually worked by salaried exempt employees.  By doing this, the employer insures that the worker receives their full weekly salary for weeks in which days have been missed.

Please see the following for further details regarding the requirements imposed on employers who provide paid vacation benefits:

2. You are a salaried non-exempt employee

If you are a non-exempt employee, and thus entitled to overtime pay under California wage and hour laws for any hours worked over 8 per day and 40 hours per week, the fact that applying 8 hours of vacation pay puts you over 40 hours for the week does not entitle you to overtime pay.  Only hours actually worked are counted when determining overtime pay.  You would only be entitled to your daily overtime during this week for any day in which you actually worked over 8 hours.

Another issue would be to determine if the time spent attending the "work related exam" is actually "work" time instead of time off.  This is somewhat similar to the issue that comes up with "training" classes.

To determine if time spent in training classes should be considered "hours worked", and thus paid, there are 2 primary factors that are looked at: 1) whether the attendance is during your regular working hours and 2) whether your attendance is voluntary.

Attendance at training programs do not have to be counted as hours worked if the following four criteria are met:

    1) attendance is outside of the employee's regular working hours;
    2) attendance is in fact voluntary; [federal refulations explain that attendance is not truly voluntary if it is required by the employer, or if the employee is led to believe that nonattendance would somehow adversely affect his employment]
    3) the course, lecture, or meeting is not directly related to the employee's job, and
    4) the employee does not perform any productive work during such attendance.

If all four criteria are not met, the time spent should be considered "hours worked" and should be paid.  You may also find the following tool provided by the Department of Labor useful in analyzing your situation: DOL FLSA Hours Worked Advisor

In order to address the specifics of your situation and to get further guidance, I would suggest you contact the California Division of Labor Standards Enforcement at [District offices: /].  

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Michael Lore


I will take questions regarding employment law, with a focus on wage and hour issues involving overtime pay under the Fair Labor Standards Act (FLSA) and applicable state laws (eg. California).


I am an attorney with 15+ years experience in the area of labor and employment law, with a practice that concentrates heavily in the area of wage and hour litigation - involving unpaid overtime wages, commissions, work related expenses and vacation pay.

American Bar Association, American Association for Justice, National Employment Lawyers Association

BBA in Finance, J.D.

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