If an employer adjusts an exempt employee’s schedule to 4 hrs a day due to work related injury, is the employee entitled to their full pay?

Exempt employee has work related injury needing accommodation of 50% less computer time. To meet requirements, employer wants to change the schedule to 4hr days. The remainder of pay would be paid by worker’s comp, but that is 3/4 of the pay. My understanding is an exempt employee gets their full pay even if they work less than 40hrs per week, just the same as if they work more than 40hrs. Please help.

Asked on June 13, 2009 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

An excempt or salaried employee gets his/her full pay even if there are occasional weeks when he/she works less than full hours. However, if a position is persistently less than full-time--i.e. it's only a part-time position--an employer may adjust the salary to reflect that.

Employers need to make reasonable accomodations for disabled employees. However, they do not need to make up new jobs that they don't otherwise need for them. If there are other roles the injured employee could meaningfully do--such as more meetings, training, or telephone work--other than be on the computer all the time, the employer would have to let them do that and stay full time. Or if the employee could do his/her old job, just with less computer time, they need to be given the chance. However, if there literally is not a full-time job at the company that does not require 7 or 8 hours a day on the computer, the employer might not be required to create one for the employee.

The employee should propose to the employer how he/she can do either the same job or some other equally valuable job with less computer time. Assuming there is a non- or less-computer role at this company, but the employer does not agree and does not give the employee the chance to do that, the employee may need to contemplate bringing a legal action for discrimination against the disabled and lack of compliance with the laws governing disability.

To recap:

1) IS there an equal level or equally valuable job that can be done with less computer time, or some way to do the old job w/less computer time. Be honest and fair but also creative, in determining this.

2) IF THERE IS, then propose it to the employer.

3) IF THE EMPLOYER DOES NOT AGREE, the get a consultation with an employment lawyer to see whether bringing a lawsuit is worthwhile--even when you're in the right, you need to balance the cost of the suit vs. how much money you might make.

Good luck.


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