Exempt
System
5,885 Posts
We have an exempt employee that will take a half day off or a few hours off here and there. This employee does not wish to use her vac time and requests the time off as vac time - My question is - just because there are exempt do we always have to give them the 40 hours. Can this employee just get paid for say 36 hours or whatever the time is that they work? I hope this is not too confusing. The point is this employee wants to save the vac time. The time off is approved.
Any information would be helpful.
Thanks
Spoden
Any information would be helpful.
Thanks
Spoden
Comments
If you are asking if the employee can be absent for a few hours due to "non-FMLA" personal reasons during the work day and have her salary docked, the answer is "no." However, the US DOL does take the position that the employee's accrued time balance may be charged for the missed time as long as the employee is paid her regular salary for the day. That means that the employee must be paid her full salary for the day when when is absent for part of the day: if there is no accrued vacation or PTO time that can be charged for that partial days' absence, the employee MUST still receive her full salary.
This is what is permitted under US DOL ruling. However, in some states, like California, docking or charging accrued paid vacation time or accrued PTO is prohibited.
Thank you!
>[font size="1" color="#FF0000"]LAST EDITED ON 06-17-03 AT
>10:21 AM (CST)[/font]
>
>An exempt employee who is absent from work for the full work day may
>have her salary docked for the full day for personal reasons
>(non-illness). There is no requirement under FLSA that there be any
>accrued paid vacation time or other paid personal time in order to
>dock salary for the full day's absence.
>
>If you are asking if the employee can be absent for a few hours due to
>"non-FMLA" personal reasons during the work day and have her salary
>docked, the answer is "no." However, the US DOL does take the
>position that the employee's accrued time balance may be charged for
>the missed time as long as the employee is paid her regular salary for
>the day. That means that the employee must be paid her full salary
>for the day when when is absent for part of the day: if there is no
>accrued vacation or PTO time that can be charged for that partial
>days' absence, the employee MUST still receive her full salary.
>
>This is what is permitted under US DOL ruling. However, in some
>states, like California, docking or charging accrued paid vacation
>time or accrued PTO is prohibited.
My understanding regarding partial day pay to exempt employees is: the exempt employee must receive the full week's salary, but it can be made up of regular salay alone or combined with vacation pay.
You can pay partial days with regular salary, as long as the remainder of the day is paid with other wages such as vacation. If the employee has exhausted his/her vacation pay bank, you must pay regular salary for the full day. We use a guideline of 4 hours: if an exempt employee works less than 4 hours, we charge vacation pay for the hours not worked. If they work more than 4, we don't charge any vacation pay.
Exceptions are:
- FMLA You can deduct salary for time not worked, if time missed is due to intermittend leave.
- Suspensions due to violations of safety rules. Suspension as a result of safety violation must be minimum of 3 days to be counted for unpaid time. Any other suspensions for violations of rules must be for at least one week, in order to be unpaid.
A murky, murky area!
If that is what you are asking, the answer is "no."
If an exempt emloyee is absent for the full week, and does no work at all, then the employee need not be paid the regular salary at all. Thus, the employee may go without the full week's salary. The discussion about docking applies when the employee works during the week but is absent for part of the day.
If the exempt employee works any part of the week, then the employee must be paid salary for the full week, unless the employee is absent for a full day under one fo the specified conditions allowing docking of a full day's pay.
If the emplyee is out for the full week but uses accrued paid time, such as paid vacation time, to cover some of the absence but doesn't have enough to cover the entire week's absence, you may still dock the salary for the "uncovered time." Remember, the emplyee still hasn't worked at all during the week and the payment of accrued paid time isn't work time.
Regarding your second quesiton about whether th eemplyee has to use PTO, that's really up to your company policy. For absences due to personal reason (non-illness or injury),there is no requirement that a company even have PTO or paid vacation time in order to dock a full day's absence from the weekly salary.
However, if it's for full day's absence due to illness or injury, then in order to dock salary, the employer MUST have a paid sick leave compensation mechanism such as plan, policy or time benefit to which the employee is subject (even if he or she is not yet eligible to the benefits or has exhausted them).
Peyton Irby
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]
If Dubya goes to Crawford Texas on Friday as an entire day off, then his salary may be docked for the day's absence due to personal reasons. If Dubya stops by the Oval Office first to check out the status of the hunt for WMD's, to get instructions from Dick Cheney and to sign a few bills, and then he leaves for Crawford, he gets paid for the full day. Partial day's absences do not result in docking of the day's pay from the weekly salary (ignoring FLSA provision 541.5d regarding public sector exempt employees and FMLA provisions regarding reduced FMLA leave and docking exempt salary).
The rest of the information regarding the charging of the exempt's accrued time balances for partial days' absences is optional with the employer -- it may be done under DOL interpretation of FLSA regulations without jeopardizing the exempt status -- as long as the exempt employee receives a full salary.
Take a look at the Code of Federal Regulations, Volume 29, section 541.118(a)(1). While (a)(2) does reuqire the existence of a sick pay mechanism in order to dock the employee's full day absence for illness or injury, (a)(1) does NOT require PTO or paid vacation time to cover a full day's absence for personal reasons (which mean non-illness or injury, other than specified reasons such as jury duty) in order for the emplyer to be alowed to dock salary without jeopardizing the exempt status.
But he could say to Governor Davis as he leaves...."I'll be baaaaaaack!"
What exactly are the following specified conditions under which docking of a full day is allowed if the ee has no personal or vacation leave remaining?
actually I mistyped that sentence.
In short, what in essence I meant to say is that there are full days an exempt employee may off and not have any deduction to salary as provided for in .118(a)(4). The time off without docking is for jury duty, witness duty, temporary military leave.
While, of course, (a)(3) provides that an exempt employee who is absent for a full day due to illness and injury but has exhausted benefits to an employer's sick pay (such as having no accrued sick time left) may still have the full day's abence docked from the weekly salary. But it was (a)(4) that I was thinking of when I wrote the erroneously typed sentence.
Thanks for catching my mistake and giving me a chance to correct it.