©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 217 holding that California employers may require the use of accrued vacation for partial-day absences without causing otherwise exempt employees to become nonexempt under the salary basis test.167 A 2009 DLSE opinion letter followed this position, opining that deductions from accrued sick-leave and vacation balances generally do not destroy an employee’s salary basis.168 Because the 2005 case involved a leave policy that made deductions from an employee’s PTO bank only for partial-day absences of at least four hours, some employers made PTO adjustments for partial-day absences only when they were four hours or more. In 2014, however, the Court of Appeal held that deductions from accrued vacation time are permissible in California regardless of the length of the exempt employee’s partial-day absence.169 7.6.2 Executive exemption A California exempt executive must (1) be primarily engaged in managing a department or subdivision of it, (2) supervise at least two other individuals, (3) have the authority to hire or fire other employees, or effectively recommend the same, (4) customarily and regularly exercise discretion and independent judgment in the performance of job duties (i.e., have the authority to make an independent choice free from immediate supervision with respect to matters of significance), and (5) be “primarily engaged” in exempt duties.170 Executive activities include interviewing, selecting, and training employees, setting and adjusting pay rates and work hours, directing the work of subordinates, evaluating employee efficiency and productivity, resolving employee complaints, disciplining employees, planning the work, determining techniques to use, deciding types of material, supplies and machinery to use, purchasing same, and engaging in work directly and closely related to those activities, or properly viewed as a means to carry them out. Nonexempt tasks include performing the same kind of work as subordinates, performing production or service work that is not part of the supervisory function, making sales or replenishing stock, performing routine clerical duties, checking or inspecting goods in a production operation, and performing maintenance work. No appreciation for multi-tasking. Federal law, in determining whether an employee is executive exempt, recognizes that concurrent performance of exempt and nonexempt work can count as exempt for purposes of the executive exemption. For example, federal regulations interpreting the FLSA state: “An assistant manager can supervise employees and serve customers at the same time without losing the exemption.”171 In California it’s different. The Court of Appeal has held that an activity must be categorized as either exempt or nonexempt, based on the employee’s purpose for engaging in such activity.172 No sole-charge exemption. Federal law formerly provided for a “sole-charge exception” for executives at separate establishments, which allowed employers to treat the manager of an establishment as exempt irrespective of the primary duty test, so long as there were at least two full-time employees or their equivalents under the manager’s supervision at the location.173 California has never recognized this exception. 7.6.3 Professional exemption A California exempt professional must be (1) either (a) licensed or certified by California and primarily engaged in law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting, or (b) primarily engaged in an occupation commonly recognized as a learned or artistic profession requiring knowledge of an advanced type customarily acquired by prolonged academic study, or (c) engaged in original and creative work dependent primarily on invention, imagination, or artistic talent, or (d) engaged in work that is predominantly intellectual and varied in character, and (2) customarily and regularly exercising discretion and independent judgment in the performance of those activities.174
RkJQdWJsaXNoZXIy OTkwMTQ4