FMLA - Exempt Employees
6375839
16 Posts
I read the following comment in a response to a FMLA - Exempt Employee question:
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.
Does this mean that you cannot have a policy that would say if you are on salary and miss less than 2 hours of work on any given day under FMLA leave you will still be paid for the full day; but if you miss more than 2 hours of work for FMLA leave that you will only be paid for the actual time worked, i.e. if gone for 3 hours and worked 5 hours you will get paid the hourly calculation for the 5 hours. We have been tossing around the idea due to scenarios where salary people come in for the last hour or 2 of the day so that they did not miss the entire day and get paid.
Comments
I read the following comment in a response to a FMLA - Exempt Employee question:
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.
Does this mean that you cannot have a policy that would say if you are on salary and miss less than 2 hours of work on any given day under FMLA leave you will still be paid for the full day; but if you miss more than 2 hours of work for FMLA leave that you will only be paid for the actual time worked, i.e. if gone for 3 hours and worked 5 hours you will get paid the hourly calculation for the 5 hours. We have been tossing around the idea due to scenarios where salary people come in for the last hour or 2 of the day so that they did not miss the entire day and get paid.
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You really need to take the whole answer in context, which was:
[quote user="TXHRGuy"]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.[/quote]
In full context, it is clear that you can have a policy that awards partial pay for partial days worked to exempt employees except to say that this has not been challenged in court to my knowledge and there has been some suggestion that not every circuit will necessary accept this doctrine.
In hindsight, after re-reading the original poster's note:
[quote user="Lindsay1"]
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.
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I think my writing was confusing. Someone asked for clarification:
[quote user="6375839"]
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!
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Which I gave in the next response:
[quote user="TXHRGuy"]
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.
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[quote user="4440257"]Wouldn't SNLA also kick in here?[/quote] Saturday Night Live Addiction?
(And a much lengthier response that was pulled aside for review so can't be viewed just yet)