Again--docking exempt employees

hrperson

An exempt employee hired less than two months has missed in excess of six days work for various reasons (cold, sore from an accident, etc.). Critical position involving employee benefits. The employee's department head has been docking her (only in full day increments when she has not shown up for work at all). This is okay? Thanks.

System

Yes.

Margaret Morford

While this will not apply to your current situation because the employee has not been with you long enough to qualify for FMLA, intermittent FMLA leave is an exception that permits you to use partial day increments for exempt employees. (FYI)

As a practical suggestion for how to get the work done, you might consider giving this person specific deadlines for tasks and not move those deadlines. For example, if you tell him/her you need this by the close of business on Friday and he/she misses work on Tuesday, be clear that you still need it by Friday and point out that he/she may have to work extra hours to complete it by the Friday deadline. Do not say "You need to make up the time you missed on Tuesday" because then you are back to counting hours on them as if they are non exempt. If you have any questions, feel free to call me at 615-371-8200.

Margaret Morford

dhnyct

Please direct me to the regulation which speaks to partial day docking for exempt employee on intermittent FMLA.

Thanks ! ! !

System

dhnyct,

The regs on docking exempt employees pay for intermittent FMLA leave are available in HRhero.com's member's-only area:

[url]http://www.hrhero.com/lc/regs/cfr/CFR1/0005378.htm[/url]

Hope this helps!

pv25

Christy,

On what do you base your answer that the docking is permissible?

The FMLA regulation on making deductions for exempt employee is available here:

[url]http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.206.htm[/url]

System

pv25 & hrperson,

My answer came from an attorney who suggested we answer a simple "yes." On further investigation, though, I think we need to add a disclaimer.

Below is a statement from one of our Employment Law Letter articles, "Deductions from exempt employees' pay: avoiding FLSA liability."

"You may reduce a salaried employee's pay for absences of a day or more because of sickness or disability ONLY if you do it under a bona fide plan, policy, or practice of providing compensation for loss of salary because of sickness and disability. In other words, if you have a paid sick leave policy, you may deduct full-day absences for sickness before the employee qualifies for the plan or after he has exhausted his leave allowance under it."

Thanks for prompting a further look at the question, pv25!

Christy

P.S. HRhero.com Law Center members: You can find the full article in the Newsletter Archive [url]http://www.hrhero.com/lc/[/url]

pv25

If anyone is interested, the FLSA regulation on this issue, 541.118(a)(3), is here:

[url]http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/29CFR541.118.htm[/url]

Don

Do I need a special form for employees applying for intermitent FMLA Leave? If I do this for one do I have to do this for everyone?

cw

Can a company have a disability program that states the disability for exempt employees will only take place after you have been with the company X amount of years and at that point you will only recieve 20% of your pay for the first 6 months and 0% thereafter? The amount of disability increase the more years of service. I understand how this falls into FMLA, and docking an exempt employee.

Susan Fentin MA

I'm not sure I understand your question. Are you asking whether such a plan
is permissible under ERISA or whether it is discriminatory because the
amount changes as the employee ages or whether it is okay to have a plan
that treats exempt individuals different from non-exempt individuals? If
you can clarify the issue for me, maybe I can point you towards some
resources.

Susan G. Fentin, Esq.
SKOLER, ABBOTT & PRESSER P.C.
One Monarch Place
Springfield, MA 01114
Tel: 413-737-4753

Rockie

You certainly won't get in trouble with the DOL doing this. Sounds to me like it is an attendance/absenteeism problem with this employee and will probably be reflected on her review if it intereferes with getting her job done.

Cheryl S SPHR

If we can talk about this some more -- I have another question.

I understand we cannot dock "pay" in less than one-day increments. But what about leave (not FMLA related). Does that also have to be docked in whole day increments for exempt employees. Appreciate any information you can provide as well as resources.

Thanks.

Peyton Irby MS

docking is permissible only if you have a sick leave plan in place for exempt employees. [see previous posts for the dol reg.] your post leads to the conclusion that employee has not become eligible for the plan or has exhausted available days. docking is permissible for a full day absence in that situation.

WT

As a general rule, exempt employees do not get paid for hours worked over 40 in a given week. The flip side of this is that they are paid regardless of quantity or quality of work. Some municipalities have been taken to court over impermissible docking and have lost exempt status for jobs, thus incurring liability for overtime payments. If this is a new employee and you have a probationary period, take a good look. Accidents and problems can happen to anyone but people work through it, however, your confirmed "time off junkie" will never change. If you have one of those, cut your losses and dismiss the employee before the probationary period ends.

Peyton Irby MS

it sounds as if you may have a potential discipline issue as well as a FLSA issue. see the earlier posts on docking. it is ok to dock for a full day--no partials--if you have the plans in place as discussed.