Negative balances in personal and comp time
Alex2003
38 Posts
I just took my job in the county government, so some of the local government issues are new to me. I have a situation where a salaried exempt Court employee overused her personal time. She has had attendance issues. So, her supervisor (Judge) is under the impression that a salaried exempt employee must be paid for 80 hours no matter what. Therefore, they want to move her negative balance personal time (she will not be able to accrue enough hours to offset what she owes through the end of the year) to her comp time and make her work off the time she basically owes. Past record shows she has consistently worked comp time.
I have a problem treating this "transformation" of personal time into comp time as a tool of managing the attendance problem this employee has. I believe we need to deduct the amount she owes (she may leave at any time and we will be stuck with a nice rounded $$$ owed) and continue managing her absences through discipline. She is one of those employees who uses her time off as soon as it is accrued.
I do not think her absences were related to sickness as there was no request for FMLA. At this point, I do not know if they were scheduled or not.
I guess another solution may be to allow her to keep a negative balance through the end of the year while applying her new accruals to reduce the negative balance. And at the end of the year, deduct what she still owes.
My question:
1. Is deducting overused and not yet accrued personal time O.K. with a salaried exempt employee?
2. My understanding of the law, as it applies to salaried exempt employees, you cannot doc their partial day pay not full-day due to sickness. But you can doc their pay for other absences (I think there was a discussion on this topic some time ago).
Thanks for your input!
I have a problem treating this "transformation" of personal time into comp time as a tool of managing the attendance problem this employee has. I believe we need to deduct the amount she owes (she may leave at any time and we will be stuck with a nice rounded $$$ owed) and continue managing her absences through discipline. She is one of those employees who uses her time off as soon as it is accrued.
I do not think her absences were related to sickness as there was no request for FMLA. At this point, I do not know if they were scheduled or not.
I guess another solution may be to allow her to keep a negative balance through the end of the year while applying her new accruals to reduce the negative balance. And at the end of the year, deduct what she still owes.
My question:
1. Is deducting overused and not yet accrued personal time O.K. with a salaried exempt employee?
2. My understanding of the law, as it applies to salaried exempt employees, you cannot doc their partial day pay not full-day due to sickness. But you can doc their pay for other absences (I think there was a discussion on this topic some time ago).
Thanks for your input!
Comments
While partial day's absence may not be docked from the exempt's weekly salary, in the public sector, such docking is permitted (wihtout jeopardizing the exempt salary) under 29CFR541.5d IF the governing jurisdiciton, e.g., the Board of Commssioners/Supervisors, has issued regulations or policy or ordinance permitting that to occur.
US DOL has take a position that docking hours balances into a negative is permissible. In other words the employer can borrow from as yet unaccrued time balance or unavailable time balance to cover the current absence if the emplyer has a policy or practice of doing that.
DOL has also held that docking or charging the current accrued time balances is okay for partial days' absences to cover the salary as long as the employer does NOT reduce the salary inappropriately for the partial day's absence even if there were no accrued time balance available (of course .5d would allow a governmental entity to dock the salary even if there were no accrued time balance available).
What an employer may dock from salary (outise of .5d) are full days' absences for personal reasons (anythign that is non-illness or non-injury) and full days' absences for illness and injury PROVIDING there is a sick pay policy, practice, plan or benefit (such as paid sick time) that would cover the full day's absence due to illness or injury. Note that there is no similar requirement for full days' absences due to personal reasons; those may be docked even if there is no PTO or vacation time or paid personal time to cover the absences.
If the exempt employee has accrued comp time because he or she has worked more hours than expected (that is optional wiht the emplyer), then of course the employer is free to use that to off-set the absence, either full day or partial day. Requiring the employee to make up the time, for a partial day's absence, may in some circumstances appear to treat the employee as hourly, thus jeopardizing the salaired and exempt status.
Before going down that road, you probably should check with County Counsel for advice and legal policy of your County.