Salary Nonexempt forced vacation

C Wilson

Since our controller went to a wage & hour seminar in August the following change took place. When a nonexempt salaried person is out a full day for any reason they are forced to use a vacation day instead of having the option of taking an unpaid day. We were closed for a couple of days dring hurricane Ivan, so there went the vacation days I had planned to use in November.

Are any of you aware of any changes in the regs. that would have initiated this change in procedure?

System

Before I would attempt to weigh in on your question I need to know what you mean when you say salary nonexempt employee? Those terms are, in most parlances, mutually exclusive. Salaried and exempt can be synonymous, ditto with nonexempt and hourly. What is this new hybrid called salaried nonexempt that you refer to? Did you mean salaried exempt?

Parabeagle

We have salaried nonexempts, as well. I don't know if the concept is universal, but some states allow employers to pay nonexempts by salary, provided they pay OT if appropriate.

As far as the vacation vs. unpaid time issue is concerned, we also do that. Our policy specifically states that any available paid time off must be exhausted before an employee is permitted to take unpaid time. Otherwise, you have an employee who takes a few hours here and a day there in unpaid status, but still has vacation time left.

marc

Agree with Parabeagle. Salaried non-exempts is a valid category, as long as you pay OT when earned. As for the forced vacation, this is also our policy. EEs get a certain amount of time of each year, which we plan for. Allowing them to get even more than the plan can have a huge disruptive impact on operations - which was not what we had in mind when we came up with our generous time off policies. So we administer just as Parabeagle described. By policy, we require all eligible leave banks to be used toward a full 80 hour two-week paycheck whenever the EE is otherwise short of time. Except for disciplinary suspension, there are no unpaid hours with vacation time still in the bank.

Don D

the Fair Labor Standards Act does not address vacation and there is no federal standard or regulation mandating vacation pay or vacation policies. Those are solely at the discretion of the employer, as are the policies requiring that absences be balanced against the bank of vacation for that employee.

An employer is at liberty to establish its own vacation policy and can require that absences be charged against vacation balances in any time periods it wishes; hourly, half-day, full day, etc.

Non-exempt, salaried employees are indeed common. We have quite a few. The terms are not mutually exclusive. Hourly employees can be paid a guaranteed weekly salary, for example, and still be entitled to overtime. My assistant and receptionist both fit in this pay category.

System

Forgive me, but the term “Salaried-Exempt” employee is in indeed, new to me. As evidenced by the number of posters/employers who have heard of it or use it as part of their regular lexicon, it apparently appears to be somewhat in vogue. However (and I hate to be a party-pooper here) as far as the FLSA is concerned, there is no such thing. An employee is either hourly, or salaried. They are either exempt from the overtime regulations set forth in FLSA, i.e., salaried, or they are not exempt from the overtime regulations, and therefore they are hourly. One can play with the terminology all day and it will not change the basic premise. If an employee is, by law, entitled to overtime pay for time spent performing work for an employer in excess of forty hours per week, that employee is a non-exempt hourly employee. The use of creative semantics does not give rise to a third category.

Don D observes that “Hourly employees can be paid a guaranteed weekly salary, for example, and still be entitled to overtime.” Well, I hope so Don – but the term “guaranteed weekly salary” as it applies to non-exempt employees, has no real meaning outside of its colloquial use in a particular place of employment. As far as the FLSA is concerned, you are treating (paying) that employee as an hourly employee all along no matter what you call them or the compensation arrangement.

To be sure, there is nothing in the FLSA that prevents an employer from paying an otherwise bona-fide salaried employee overtime -- but when you do, you are, in fact, treating that employee as an hourly employee. When it comes to the FLSA's test for the eligibility of overtime pay, neither job titles nor employer-specific pay scale nomenclatures have any bearing.