Docking wages of exempt employees

M in AZ · June 2004

Is there anyone out there who has teachers and if so are you classifing as exempt employees?

Because we have classified them as exempt, it has been my understanding that I can only dock for full days, not 1/2 days on exempt employees. We give them a fixed number of days available for sick and personal days and some of them go over. Am I correct in claiming they are exempt - and if so, by default the above rule applies. Or is there a twist for our certified teachers that is handled differently?

Hatchetman · June 2004

Under FLSA regulation 29CFR541.314(a), professional teachers (licensed) who are actually engaged in teaching don't have to be salaried in order to be exempt. This provision permits physicians, lawyers and teachers who are engaged in their professions to be exempt without being salaried:

"A holder of a valid license or certificate permitting the practice of law or medicine or any of their branches, who is actually engaged in racticing the profession, or a holder of the requisite academic degree for the general practice of medicine who is engaged in an internship or resident program pursuant to the practice of his profession, or an employee employed and engaged as a teacher in the activity of imparting knowledge, is excepted from the salary or fee requirement. This exception applies only to the traditional professions of law, medicine, and teaching and not to employees in related professions which merely serve these professions."

This means that teachers may be paid hourly and still be exempt from the overtime requirements (and minimum wage requirements). Thus, they wouldn't have to be paid for hours they don't work.

Of course, if there is a teacher's union contract or an individual contract, or if state law or local regulation of a school district provides for something different, that would be controlling.

M in AZ · June 2004

Thanks. We have all certified (licensed) teachers set up as salaried for convenience sake. There is an annual contract and personnel handbook that states days taken in excess will be docked. Sounds like we have it covered,or am I overlooking something? There is no union as we are a private school.

Hatchetman · June 2004

Under FLSA you may only dock salary in full day increments (except for reduced FMLA leave).

FLSA, by DOL Opinion, does not prohibit an employer from charging available accrued time benefits to recoup the pay out of salary for partial days' absences -- but in ALL cases (other than intermittent FMLA) a full day's salary still has to be paid (even if the benefits have been exhausted). Since you have a sick pay mechanism that reimburses your teachers for loss of salary for absences due to illness or injury, you may dock the salary for a full day's absence due to illness or injury.

M in AZ · June 2004

Your first response indicated we could reduce pay in less than 1 day increments - if we paid licensed teachers hourly. If we pay our licensed teachers by way of salary, docking less than 1 full day (exclude FMLA) is not an option?

Basically, if we pay salary - handle as we would exempt. If we pay hourly - we do not need to pay overtime and can dock for less than 1 full day of absences.

It has been my understanding that employees are exempt or nonexempt. Paying the employee a salary verses hourly to nonexempt does not change how you handle docking pay and paying overtime. Are you indicating with teachers it does make a difference? I realize we are dealing with a different group of employees as they must be licensed teachers, and that is what gives us extended options over the normal exempt employee?

Sounds like I am going in circles on this issue. As if I didn't see that coming.

Hatchetman · June 2004

Again, the FLSA regulation doesn't require the licensed or certified teacher to be salaried in order to be exempt. Thus, the teacher could be paid hourly and still be exempt from FLSA overtime.

So, if you pay the teacher by the hour, and he or she only works 39 hours during the week of a 40 hour schedule you could pay 39 hours at straight rate time (or for 7 hours of work and one hour unpaid due to personal absence, for example). If you pay the teacher by the hour and he or she works 42 hours, you could pay the teacher all 42 hours at straight rate time.

In your case, you said you pay the teachers a salary so that payment would have to be in accordance with 541.118(a).

Again, of course state wage and hour law may address the issue as well and require the teacher to be paid hourly with time and a half for overtime or be paid a salary and not be docked for partial days' absences.

Don D · June 2004

Most of the women in my family have been or are currently teachers. I've never heard of a teacher being paid hourly. Teachers are on annual contracts, none of them hourly contracts. They are contracted for a school year and paid a monthly salary, either 12 or 9 months a year, at the teacher's option.

M in AZ · June 2004

Thanks for the references and input.

We aren't going to change teachers to hourly to avoid what will probably amount to a small handful of teachers who will use more days than available in half-day increments. That's the cost of doing business. I just want to make sure we are handling correctly.

FLSA - if salaried, I am unable to dock in less than full day increments.

Just curious, as I am fairly new to this venue and appreciate your prompt replies, what position are you Hatchetman and Don. Don I know is not a "bean counter" from previous responses in other postings. I've noticed you both usually have input - and are well cited with reference to specific regulations. Most of which I concur with. Thanks again for your assistance.

Docking wages of exempt employees

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