Use of Partial days for Exempt Employees
maryfmurray
75 Posts
We currently do not practice exempt employees must use leave for partial days for sick, vacation or personal time if they work under their 75hour pay period. In other words if an exempt employee came in and worked 1 hour and went home, we would pay them for the entire day without using any other time. We have since discovered that we have misunderstood this law and have tried to explain this to our exempt employees how this law works. We are having a hard time getting these employees to except the conditions and do not want to follow the rules.
Does anyone have a better suggestion on how to get across to these employees that this must be done? Do any of you have a policy that I may look at that states exempt employees must use partial days for time off? I would appreciate any help.
Thanks
Mary F. Murray
Does anyone have a better suggestion on how to get across to these employees that this must be done? Do any of you have a policy that I may look at that states exempt employees must use partial days for time off? I would appreciate any help.
Thanks
Mary F. Murray
Comments
If you wish to implement such a policy, be aware of two things --
Some federal appellate courts have not quite accepted DOL's formal opinion; I believe at least one circuit, maybe two, have held that such an action -- charging an employee's accrued time bank for partial day's absence -- in fact, violates FLSA and therefore jeopardizes the exempt status. Some circuits have adopted DOL's opinion. Most have not had any ruling on it.
Check your state's laws. In some states, paid vacation time and PTO are considered deferred compesnsation (vesting to the employee upon accrual) and not a fringe benefit. FLSA prohibits docking the employee's salary for partial day's absence. Since the paid vacation time or PTO is deferred salary for an exempt employee it would appear to be a violation of FLSA if you charge the vacation or PTO for the partial day's absence. Depending on how your state views sick leave, this may also apply. California, in fact, specifically has that prohibition in its regulatory guidance.
You should certainly consult with legal counsel in reviewing the approriateness of implementing such a policy and in its drafting.
If we consistently had individuals "abusing" by coming in a hour and then leaving, then it would be addressed in a disciplinary manner. Most of our exempt people have too much to do to abuse time off...majority of them have a hard time taking all their time as it is without inventing ways to get more!