Opinion: Firms Can’t Force Time Off

Stephanie A. Weiss

California photonics companies that have considered forced vacations or unpaid leave should think again, the state's labor division says.

In February, semiconductor equipment manufacturer Applied Materials Inc., a large photonics OEM buyer, mandated five shutdown days. As semiconductor, computer and communications business sinks, many other Silicon Valley companies have considered shutdowns and unpaid leave options as alternatives to laying off workers. However, a state labor opinion could change their plans.

Miles Locker, chief counsel for the California Div. of Labor Standards Enforcement, declared in a May 30 e-mail to an employment attorney that companies must pay salaried workers a monthly wage. That meant, he said, that companies can't force salaried workers -- so-called "exempt" workers who do not receive overtime -- to take time off with or without pay if they have worked during that month. In contrast, federal law requires that companies pay exempt employees a weekly salary.

Locker told The Recorder, a legal publication, that the state's law protects employees from being forced to take a week off without pay, only to return and find they must make up all of those hours without recouping the pay or receiving overtime pay.

Employment lawyers expressed surprise at the opinion but noted that employers can request that exempt employees take vacations or leave during a shutdown period, as long as compliance is voluntary.