An Administrator's Guide to California Private School Law

Chapter 6 – Wage And Hour Laws

4. J URY D UTY , A TTENDANCE A S W ITNESS , M ILITARY L EAVE A school may not deduct an exempt employee’s pay due to jury duty, court appearances required by a subpoena, or temporary military leave if the absence is less than a full workweek. 522 However, this rule is subject to the caveat that an employee need not be paid for any week in which he or she performs no work during that entire week. Thus, any employee who performs no work within the week is not entitled to continuation of his salary even if the time lost is due to jury duty, attendance as a witness, or for temporary military leave. 523 C. D UTIES T EST If the salary basis test is met, the corresponding “duties test” must be performed to determine whether an overtime exemption applies. Under the “duties test,” an employee must be “primarily engaged in” exempt activities. Under California law, which schools must follow, an employee is “primarily engaged in” exempt duties only if more than 50% of the employee’s work time is devoted to exempt duties. 524 If an employee works in two or more positions at the school, the duties performed in all of the positions must be considered collectively to determine whether the employee is exempt from overtime. 525 The California “duties test” is a significant departure from federal law since federal law permits an employee to meet the duties test even if the employee spends less than 50% of her time on her primary duty. 526 The federal “duties test” places a major emphasis on the character of the employee’s job as a whole to determine the employee’s primary duty. 527

1. E XECUTIVE E XEMPTION A person employed in an executive capacity means any employee:

 Whose duties and responsibilities involve the management of the enterprise in which he or she is employed or of a customarily recognized department or subdivision thereof; and  Who customarily and regularly directs the work of two or more other employees therein; and  Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight. 528

a. Management Of The Enterprise An executive employee is essentially a manager. Therefore, the employee must exercise managerial duties over either the entire enterprise in which he or she is employed or of a customarily recognized department or subdivision thereof. The term “customarily recognized department or subdivision” has a specific meaning. The phrase is intended to distinguish between a mere collection of employees assigned from time to time to a specific job or series of jobs and a unit with a permanent status and function. 529 For example, a school could have a lower school, middle school and high school, and the deans over each of those “schools” could qualify for the executive exemption in addition to the head of school.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 156