Use of Partial days for Exempt Employees

maryfmurray · February 2003

We currently do not practice exempt employees must use leave for partial days for sick, vacation or personal time if they work under their 75hour pay period. In other words if an exempt employee came in and worked 1 hour and went home, we would pay them for the entire day without using any other time. We have since discovered that we have misunderstood this law and have tried to explain this to our exempt employees how this law works. We are having a hard time getting these employees to except the conditions and do not want to follow the rules.
Does anyone have a better suggestion on how to get across to these employees that this must be done? Do any of you have a policy that I may look at that states exempt employees must use partial days for time off? I would appreciate any help.
Thanks
Mary F. Murray

Don D · February 2003

HR at my company drafts and administers the company policies applying to leaves. Our policy calls for the use of leave in half day increments. Whether or not the employee actually completes his/her leave paperwork with supervisory signoff, our tracking capability ensures that HR and Payroll charge the proper half-day increment. Then we go back with a memo to the ee and copy the super requiring that a leave slip be completed. We haven't found that ee's 'don't understand' or 'don't agree' with the policy. Perhaps they don't but realize policy is policy. The one hour gimmick on the part of exempts does, however, allow them to slip under the bar.

pmaher · February 2003

My former employer has the same practice as you do. The only caution with this practice is that management has to keep an eye on abuse. My current employer is also debating what to do with partial day absences. We are leaning toward the 4 hour absence to be charge to their PTB/PTO. However, if they do not have any leave and work any part of the day, they need to be paid for the full day.

Hatchetman · February 2003

[font size="1" color="#FF0000"]LAST EDITED ON 02-12-03 AT 10:39AM (CST)[/font][p]While DOL has given opinions that an emplyer may charge accrued time banks for an exempt employee's partial day's absence (when not on FMLA), there is no requirement or authority in FLSA, itself, that this be done (although, I personally can agree with it being done -- except to me, of course).

If you wish to implement such a policy, be aware of two things --

Some federal appellate courts have not quite accepted DOL's formal opinion; I believe at least one circuit, maybe two, have held that such an action -- charging an employee's accrued time bank for partial day's absence -- in fact, violates FLSA and therefore jeopardizes the exempt status. Some circuits have adopted DOL's opinion. Most have not had any ruling on it.

Check your state's laws. In some states, paid vacation time and PTO are considered deferred compesnsation (vesting to the employee upon accrual) and not a fringe benefit. FLSA prohibits docking the employee's salary for partial day's absence. Since the paid vacation time or PTO is deferred salary for an exempt employee it would appear to be a violation of FLSA if you charge the vacation or PTO for the partial day's absence. Depending on how your state views sick leave, this may also apply. California, in fact, specifically has that prohibition in its regulatory guidance.

You should certainly consult with legal counsel in reviewing the approriateness of implementing such a policy and in its drafting.

Don D · February 2003

So, with respect to Albert Gore, Jr., I think I hear you saying there's no 'controlling legal authority'.

Rockie · February 2003

We don't charge our exempt employees PTO bank or GASP! dock their pay if they work any portion of the day. Most of our exempt individuals consistently work more than 40 hours a week and if they occcasionally come in to take care of a few things early in the morning and then leave for a long weekend, this is fine.

If we consistently had individuals "abusing" by coming in a hour and then leaving, then it would be addressed in a disciplinary manner. Most of our exempt people have too much to do to abuse time off...majority of them have a hard time taking all their time as it is without inventing ways to get more!

Use of Partial days for Exempt Employees

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