FMLA Exempt employee
Lindsay1
9 Posts
I have an extempt employee who is out on FMLA (maternity). She is working from home on a self- set schedule, a few hours here, a few hours there- no set schedule. I am deducting her non-worked hours from her FMLA total, but the real question is pay. As an exempt employee, if she works even one minute, she should get paid a full day's wage. In the past, my predesessor paid an exempt FMLA employee a full day only if he or she worked at least four hours in a day.
The employee in question told another manager that she will 'work the system' as long as possible, and I've noticed a lot of 4.25 hour days. She sends me an email each week of hours worked.
How do others handle this type of situation?
Comments
DOL has made it clear in its regulations that the employer may make deductions from the employee's salary for any hours taken as intermittent or reduced FMLA leave within a workweek, without affecting the exempt status of the employee. Employers have to engage in some type of calculations to establish an hourly rate for an exempt employee, in order to dock that employee for the hours taken on FMLA leave. If an employer fails to keep records on the number of hours an employee works each day, it will be difficult for an employer to calculate an exempt employee’s hourly rate. In such cases, the employer may be forced to accept the employee’s statement as to his or her regular daily hours.
Joy has it correct. FMLA timeoff is one reason the FLSA allows employers to dock an exempt employee's pay.
"Deductions from pay are allowed:
DOL has made it clear in its regulations that the employer may make deductions from the employee's salary for any hours taken as intermittent or reduced FMLA leave within a workweek, without affecting the exempt status of the employee. Employers have to engage in some type of calculations to establish an hourly rate for an exempt employee, in order to dock that employee for the hours taken on FMLA leave. If an employer fails to keep records on the number of hours an employee works each day, it will be difficult for an employer to calculate an exempt employee’s hourly rate. In such cases, the employer may be forced to accept the employee’s statement as to his or her regular daily hours.
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Joy is right: FMLA has the only exception to the full day's pay for a partial day's work for exempt employees paid on a salary basis.
In a non-FMLA situation, you can deduct the unworked hours from vacation/pto banks, even allowing those banks to go into the negative, but you still have to pay a full day's pay for partial day work. This regulation is new and insufficiently challenged to understand how well it will stand up. Partial day deductions used to be a problem and it's not clear that every circuit has or will buy into this regulation.
Additionally, your predecessor was making a grievous salary-basis error by requiring any amount of time other than "more than zero" to pay for a full day. There was awhile there when people were paying in half day increments but that failed the test of litigation and has been not OK for at least 5 years.
I was reading your response and was hoping for a bit more info regarding something you said in your response:
"Additionally, your predecessor was making a grievous salary-basis error by requiring any amount of time other than "more than zero" to pay for a full day. There was awhile there when people were paying in half day increments but that failed the test of litigation and has been not OK for at least 5 years."
We have been considering a policy regarding salary personal pay & FMLA, i.e. if gone the entire day no pay, if gone below a certain # of hours still get full pay but if you exceed, for example 2 hours, lose pay for the actual amount of time gone by doing a per hour calculation. Are you saying that would not be permissible? Any clarification on the matter would be appreciated!
"Additionally, your predecessor was making a grievous salary-basis error by requiring any amount of time other than "more than zero" to pay for a full day. There was awhile there when people were paying in half day increments but that failed the test of litigation and has been not OK for at least 5 years."
We have been considering a policy regarding salary personal pay & FMLA, i.e. if gone the entire day no pay, if gone below a certain # of hours still get full pay but if you exceed, for example 2 hours, lose pay for the actual amount of time gone by doing a per hour calculation. Are you saying that would not be permissible? Any clarification on the matter would be appreciated![/quote]
Two scenarios.
Scenario 1: NON-FMLA
Exempt person works one iota of a second, you must pay for the day. You may, under the regs and with caveats described above, deduct one full day minus 1 iota of a second from a paid leave bank. The balance in the paid leave bank is irrelevent. It can go negative as far as the fed is concerned. However, the employee must receive a full day's pay.
Scenario 2: FMLA
Exempt person works 3 hours in an eight hour day. The absolute base minimum you can do is use the DOL formula for calculating the person's hourly rate and pay them for 3 hours. The 5 hours do not need to be paid. If you want to have a policy that pays people for less than a full day's work on a partial day they missed while out on FMLA, you get into some grey areas but not so much because of FMLA as because of FLSA. Under FMLA, anything that is more permissive is allowed as far as that law is concerned. If you want to give 14 weeks leave, fine. If you want FMLA leave to be paid, fine. However, saying you'll pay them for 2 of the 5 hours they missed starts to invoke questions about their basis of pay. If they're exempt, they must be paid on the salary basis by definition. I know it sounds awkward: why would anybody complain about being paid 1/2 time for time missed on a partial day due to FMLA? However, this is a strange place between the two laws that has not been addressed as far as I know. The right thing to do is ask an employment law attorney and be sure to question them about your risk under the statutes, the regs, AND specifically in all the circuits in which you do business.
One could argue that I'm too conservative. I recently had a discussion with my peer in a different line of business. He was discussing the many, many EEOC cases he has handled. I was discussing how I avoided having many when he started talking like that. Pick your poison.