Exempt Question

richterma

An exempt employee has no vacation time or sick leave and requests to take 2 days off in a week OR is sick two days. Can I deduct 2 days pay from an exempt employees check?

Margaret Morford

No, not if you don't want to lose the exemption. If he takes the time off, you should issue him/her corrective action for excessive absenteeism.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

mwild31

If vacation or sick policies allow, can you deduct from their balances (in effect put them in the 'hole' 16 hours)?

Leslie

I don't see why not. And Margaret, I could have swore that if the employee does not have the applicable sick or vacation you could deduct, not in number of hours, but by percentage (20 percent, 40 percent, etc.) No?

scottorr

I agree with Margaret. We have a policy that allows exempt ees to "bank" vacation. The policy requires pre-approval and needs to be repaid based on a percentage of salary if the ee leaves before the bank vacation time has accrued.

hrbanker

According to the "Ohio & Federal Employment Law Manual", you can reduce a salaried workers pay if they are absent ONE OR MORE DAYS for personal reasons other than sickness or accident. You should check the laws in your state, which may be more restrictive. You cannot deduct for partial days absence or for days when they call in sick, but if they have used up all of their sick and vacation time and then decide to take a few days off to go fishing, you can dock them.

gillian2

Since this is California, you can in fact make a loan of two days vacation, however, the employee has to agree to the arrangement and there should be a signed agreement to pay back the vacation if the employee quits before he accrues enough to pay it back. If you don't do that and the employee quits the verbal agreement won't count and you will have to pay it all. The rules are the same regarding exempt/non-exempt and losing the exemption.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 08-08-03 AT 07:08PM (CST)[/font][p]The answer is yes, even in Californa.

Under California wage and hour law flowing from FLSA, you may dock the emplye's full day absences due to personal reason. There is no requirement under either FLSA or Califronia Labor Code that the emplyee have any accrued time benefit for absences due to personal reasons in order to dock the absence from the salary. As Leslie (from Arizona noted), in California, the amount of the dock would be the equivalent in percentage of the weekly salary the two days represent out of the total number of normal work days in the employee's schedule weekly. Basically, that will either be 5 or 6. But, under California interpretation, even if the employee works four days a week, you would still dock no more than 1/5 of the salary for the week for each full day of absence. The State Laobr Commissioner has provided a rationale for that. (If the employee works 6 days a week, you would dock 1/6 of the salary for each day of absence. Under Califonria ruling by the State's Labor Commissioner, even if the employee worked what most people would consider to be a 9/80, you would still dock 1/5 of the salary for each day missed, even on the short week). As a footnote, the US DOL Wage and hour Division goes with the percentage of actual days work, and does not limit the docking to either 1/5 or 1/6 (I'm not doing percentage for 1/6 -- I'm too tired).

So, it does not matter for full day's absences due to perosnal reasons if the employee even has access to any accrued time off plan. By the way, "personal reason" means any absence not due to injury or illness (but you may not dock salary for witness or jury duty or temporary military leave).

On the other hand, even under California law, if the employee is absent due to illness or injury for a full day, you may only dock salary if the employee is subject to a paid sick insurance or paid accrued sick time mechanism -- any bona fide paln, policy or practice in which the employee's loss of salary due to a full day's absence due to illness or injury would be reimbursed. That's "subject to." That means the employer may dock the salary for the full day due to absence or injury even if the employee is NOT YET eligible to the sick pay benefits (perhaps not having been with the company long enough) OR has exhausted the benefits. Again the dock is done in percentage of the normal number of days the employee would work in the week (no more than 1/5 and no less than 1/6 for each day). If there is no sick pay mechanism established by the company, then the employer must pay the full day's salary when the employee is absent due to illness or injury.

So, there is no reason to go into "negative" balances or whatever.

All this assumes that the employee is not on FMLA or is not a public sector employee in California.

Zanne

You now, we had this very same question.

What complicated it for us is that a DOL speaker came to town and said it had to be MORE than one day of absence in the week. And not on FMLA, with sick leave, blah, blah, blah.

When we read the regs, we felt that it could be one complete day of absence that would be deducted from the salary if the vacation time was exhausted.

Hatchetman - where did you get your interpetation?

Zanne

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 08-11-03 AT 07:19PM (CST)[/font][p]Zanne, are you asking about the percentage of the deduction?

Obviously, the FLSA regulations regarding absence due to illness and injury or personal reasons do specifically say "a day OR more" -- [my emphasis]. 29CFR541.118(a).

California's position on percentage docking per day is from the State's Labor Commissioner's Opinions that are published in its Department of Industrial Relations -Divsion of Labor Standard Enforcement -- website.