Leaves - Not paying full days for exempt employees - when sick/vacation bank is used up

Bucky333

In FMLA leaves (and CFRA)  when exempt employees have almost exhausted their sick and vacation bank balances, is it permissable to pay only that amount left, if it would reflect less than a whole day's pay? 

Most of our employees are in the state of California, but we do have some scattered in states back east.  Thanks for any guidance or clarification you may have.

4179993

you have to be really careful with your state law.  FMLA has an exception to FLSA allowing salaried workers to be paid for the hours worked without jeopardizing their salaried status. I am not at all familar with your state law.  CA is a bit more giving than the fed gov.

TXHRGuy

Outside of FMLA, partial day deductions are generally a really bad idea.  Partial day payment for a full day of absence due to the lack of a full day's worth of pay being accrued in the leave bank is probably fine.  That's not a bad question to put to a state agency because it favors the employee.  I generally try to take questions about things that do not favor the employee to counsel instead.

TXHRGuy

Here's an update, taken from a certain professional organization's web site, regarding this very thing.

The question asked was whether or not it was ok to pay all of the remaining 2.5 days of accrued leave time to an exempt employee who will be absence for 3 days.  Their response begins with, "This question is essentially asking if the employer can take a partial-day deduction from the exempt employee's salary."

The Department of Labor (DOL) has said that partial-day deductions from salary pay are generally are inconsistent with the salary basis test.  They have clarified by saying that you can put a leave bank into negative balance, but you can't pay for a partial day.  What wasn't clear in the response is whether or not you can pay the 2 full days and allow a day of unpaid leave if your organization does not allow borrowing against time off banks.  However, I'm a little surprised by this treatment of the topic because the DOL has also held that an employer generally may give exempt employees additional compensation over and above their salary—even if the extra is paid on an hourly basis—without jeopardizing the employee’s salaried status.  So why not pay them over and above their 2 days of accrued leave with the remaining "hours" in their leave bank?  I think you'll have to check with counsel or call wage and hour.

 Also note that all of this rests on the assumption that you have a bona fide leave plan.  If you don't, there's very little you can deduct anything for.