Exempt Employee Work Week Limits?

BillG

Is there anything in the FLSA or any associated statute that states a Salary Exempt employee can insist that they not work more than 40 hours a week.

The employee in question is not in a safety sensitive position; she is a computer programmer that works in our Mississippi home office IT department. Nonetheless, she has objected to working any hours more than 8 hours a day or 40 hours a week in response to a special project important to the business -- a project that can not be accomplished by the externally imposed suspense date by working just 8 hours a day, 40 hours a week.

The employee claims to have been advised by counsel that we can not compell her to work more than 40 hours a week -- period! But I know of no such limitations in any Federal or Mississippi legislation that would preclude us from asking -- requiring actually - her to work extended hours (10 to 15 extra hours per week) in order to complete this specific project on time.

Have I missed something?

Peyton Irby MS

the FLSA does not mention maximum hours that can be worked by an exempt employee.
Peyton Irby
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]

BillG

Thanks, Peyton.

Don D

Mississippi law is silent on that as well, at least until our legislature votes a State DOL in. I would peruse her file to see if there's an email or other statement in it from the pre-hire conversations indicating her hours would be no more than 40. Otherwise, I'd tell her it's one of the job's expectations. Hello neighbor.

BillG

I'd already checked to make sure there were no pre-hire agreements that promised a cap on hours worked. There is none -- so we're OK on that front. But thanks for the reminder -- that's just the kind of thing that is easy to overlook. Thanks for the local response.

hrmgrmscw

Bill,

I am curious as to the employee's reaction to your requirement. Thanks.

System

Being an exempt employee myself and having worked for the federal government, it is my understanding that if the job requires you will work the required hours to complete the mission. Not anything ridiculous in the way of hours, but I have never had a problem with that. Just as exempt employees are paid for anytime worked during the day, be it 4 hours or 8, wouldn't it stand to reason that it all comes out even in the end? The only time 8 hours or 40-hour week really comes into play is for hourly ees. Did I miss something?

Hatchetman

There is always the outside possibility that there's a disability issue lying underneath her claim. Or perhaps she confusing non-exempt for exempt.

At theis point, while there is no obligation to do so based upon what you posted, I would have her explain again why she can't or won't work more than 40 hours in a week if she needs to do that in order to get the work done.

If she doesn't raise any medical issue that prevents her from doing that then move on. Don't lead her into talking about medical issues but just ask the open question and she where she goes.

Rockie

I see more and more of these type questions from salaried employees who "balk" at working more than 40 hours a week. I am surprised this has not been addressed in the "revamping" of the FLSA.

I would just advise the employee that her continued employment would depend on her ability to get the job done, whether she accomplishes it in 40 hours a week or 50. Put the ball back in her court

BillG

I'm catching up on a couple of responses with this "reply" as I've been on the road for the last week or so and unable to get to this web site.

We confirmed the employee in question is not confusing exempt and non-exempt. She fully understands that she is not hourly and not entitled to overtime for hours worked more than 40 hours. She admits this is not a pay issue -- but a "work hours" issue only.

To the employee, there may be a "medical" facet to this issue in that she had a minor work related injury a month and a half ago, filed an appropriate and legitimate workers' comp claim and received off-site phyisical therapy as a result. There were no lost work days and the therapy was scheduled during her normal work hours. She was released back to full duty with no restrictions several weeks ago.

It was during the time she was undergoing physical therapy that our problems started with this individual -- she objected to our trying to get her to schedule hier therapy at the beginning or end of the day so as to minimize the disruption. She insisted that the therapy be scheduled for mid-morning or mid-afternoon and then used the timing to either not report for work before the therapy (morninng appointment) or not report back to work after the therapy (afternoon appointment)-- claiming a variety of inconveniences depending on whether the appointment was morning or afternoon. Our problems began when we insisted that she be absent for her physical therapy appointment only for the appointment and a reasonable (generous, I might add) amount of travel time to and from.

It was after her release back to full duty and the end of her physical therapy that we started to press her to get her project caught back up and finished by the deadline imposed by our external customer that she started citing a 40 hour work week limit. During these project completion discussions, she has never raised a medical restriction issue or referred back to her work related injury -- just insisting that we can not make her work more than 40 hours per week.

Given that there is no federal or state (MS) issue with having an exempt employee work more than 40 hours on an occassional basis to accomplish a special project, we are treating this as a performance issue, pure and simple.

Thanks for everyone's help and confirming that I had not missed something in those statutes.

Bill