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Jul23

Part time exempt employee California

Our employees are exempt attorneys. We have recently instituted a part time policy for them if they so choose to utilize it. If an attorney requests to be reduced to an 80% workweek, can we reduce salary/hours/benefits etc by 80% without jeopardizing exempt status? What if they want to work 5 days/week and just reduce their hours by 80% each day (i.e. 6.5 hours per day)? Or what if they want to work 4 days a week instead of 5? What are all the issues/ramifications?

Ideally, any part-time employees would be paid on an hourly basis, for your protection and theirs.

From a legal standpoint, you can permanently change an exempt employees salary, as long as the salary does not vary from week to week. So you could offer an attorney $100,000 for full-time work, or $80,000 for working 80%, or $50,000 for working 50%. . This is true regardless of the number of days the employee worked.

However, if the employees salary varies from week to week based upon the number of hours worked, then the employee is no longer exempt. Treating an exempt employee as an hourly employee results in loss of exempt status. (Exceptions: FMLA and ADA, but those do not apply in this case.)

One of the problems with having exempt part-time employees is hours. Under the law, an exempt employee is not entitled to overtime or additional pay when he or she works additional hours. Suppose the 80 percent (32 hour per week) employee in the example above worked 64 hours one week. She would not be entitled to time off, or any additional compensation. (In fact, arguably you would be making her non-exempt by providing additional compensation.) So an employee who agreed to this arrangement could find herself working 65 hours per week, every week, for part-time wages.

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This entry was posted on Friday, July 23rd, 2010 at 7:33 am and is filed under
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