Exempt employees request for unpaid family leave

DianeZ

Good morning everyone:
I'll try to make this short, but I need your help. We have an exempt employee who's wife and him had their first baby last Monday. Great! He took off the entire week other than Wednesday, he came in and worked a full day. I assumed that he would cover his time off with vacation time. However, he came in this morning and indicated that he wants to take the time off without pay. He has 72 hours of vacation and two personal days that must be used by the end of 2004. Our policy requires employees to use vacation/personal time for days away from work. However, this is FMLA, and we don't "require" employees to use their vacation time for FMLA. So...my question is, can I give him the time off without pay, and just pay for hours worked Wednesday? I believe I can under FMLA law. But, I'm concerned because he's exempt and my understanding is that I have to pay him for an entire week worked if he works even one hour in that week. Please help me! I need to give him an answer today. Thanking you all in advance.

SMace

I've got more questions than answers. But based on some assupmtions, you could deny the FMLA the prior week because he did not notify you of his FMLA request in a timely manner (federal law is 30 days if they "knew"). Per your policy charge him vacation for the 4 days the first week. I would consult your attorney before you took that route, however.

You could also grant him FMLA and pay him for the day. If you do this you will now have to allow late requests and allow intermittent FMLA for child bonding. Those are two things you would not have to allow otherwise.

Don D

the answer to your question is yes. The FML Act gives an employer the right to dock pay for any and all approved FMLA absences, whether by the hour, the day or the week. This trumps FLSA in that respect.

Rockie

This employee performed work during the work week, therefore, you will have to pay him for the entire week unless you require him to use vacation time. I suspect he already knows this since he came in for one day.

If you require your employees to give advance notice before using FMLA, then you would be making an exception if you allowed him to use FMLA for this purpose.

If it was me, I'd require the employee to use his vacation time per policy.

cthr

FMLA allows you to not pay an exempt employee while they are on leave, even if they work part of the week.

You don't say whether the employee notified you in advance or not. It seems to me if your policy does not require employees to use paid time before they use unpaid while on leave, you can't require him to use it.

LindaS

Rockie - you may want to review 825.206 under the FMLA regulations. This section addresses whether or not an employer is permitted to "dock" an employee's salary (exempt) for unpaid leave and it states that an exempt employee CAN have their salary deducted for any hours missed under approved, unpaid FMLA leave WITHOUT jeopardixing their exempt status.

ritamcguire

Assuming he didn't ask for FMLA in advance, I agree that the right course of action is to charge him vacation time IAW your policy. If you decide to grant FMLA, what criteria do use to pay him for the one day he worked? Do you assume a 40 hour, five day week or do you figure an hourly rate and pay him for the amount of time he actually worked? Our exempt employees tend to work more than an eight hour day and more than five days a week.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 09-16-04 AT 07:43AM (CST)[/font][br][br]I'm not sure I understand your post. The employer is entitled to pay the ee only for time worked and to NOT pay for hours off on FMLA, regardless of the minutia.

The employer may calculate an hourly rate or let the FMLA hours build up until they equal what a normal work day would be in terms of total hours, then dock him for one day.

Rockie

>Rockie - you may want to review 825.206 under
>the FMLA regulations. This section addresses
>whether or not an employer is permitted to
>"dock" an employee's salary (exempt) for unpaid
>leave and it states that an exempt employee CAN
>have their salary deducted for any hours missed
>under approved, unpaid FMLA leave WITHOUT
>jeopardixing their exempt status.

Uh, sorry Linda. I must have misunderstood the original post. I thought the person wanted to use unpaid time in lieu of vacation that he already had. It didn't appear that FMLA had been properly requested or approved. In that case, I do understand that partial days or partial weeks may be docked. Thanks, though.