Exempt - Dock Pay

franfields · October 2003

If an exempt is late and absent a lot and has used up all paid time off (bona fide policy), can you tell them that they are to arrive at work by a given time or not at all, allowing you to dock their pay. I know as an exempt, you aren't supposed to dock pay if they work any part of a day but can you require them not to work if they are not there by a given time?

HRQ · October 2003

If you are at the point of telling an exempt to "arrive at work by a given time or not at all", have you already documented warnings with this person? I'd approach it with the disciplinary process. Pay them for the day if they came in to work, given them a final warning, term them when they can't/won't get it together. Then you can plain old stop paying them altogether. x:D

franfields · October 2003

I would love to do that, management won't do it.8-| They want them to work for another six months at which time they will resign.

Hatchetman · October 2003

[font size="1" color="#FF0000"]LAST EDITED ON 10-21-03 AT 05:30PM (CST)[/font][p]No, you may still not dock the pay of an exempt under the conditions you described.

If the exempt emplyee is readyl willing and able to work during any part of a week ( a full day), but the emplyer prevents that from occurring because of its operational decision, then the exempt employee is still entitled to pay for that day.

29CFR541.118(a)(1)

[url]http://a257.g.akamaitech.net/7/257/2422/08aug20031600/edocket.access.gpo.gov/cfr_2003/julqtr/29cfr541.118.htm[/url]

Further, such an act would be considered a suspension without pay - for less than a week -- invovling a non-safety issue. That also would be in violation of FLSA and jeopardize the exempt status.

marc · October 2003

Can I just say what a great resource you are Hatchetman? Others have said it before, I just want to add my voice to the choir. Thanks for the infor and the reference.

HRQ · October 2003

I knew someone like Hatchetman would step in with a clear concise answer and lots of factual backup to their answer.

Gotta love the experts of the Forum. xclap

Parabeagle · October 2003

I like HRQ's approach. I'd just as soon not get into the issue of docking an exempt employee if I can avoid it - especially under these circumstances. Use your disciplinary process and be sure he/she understands that being present for duty is an essential part of his employment (there's a question - is his physical presence an essential function? Is the job getting done regardless of how many days he's absent? If the answer is yes, that could be problematic).

But, bottom line, HRQ's approach is probably the least messy.

San Francisco · October 2003

I agree with Beagle that it can be touchy terminating an exempt employee based soley upon arriving late and/or leaving early. We terminated a store manager who was exempt based in part upon her not working full days and ended up reinstating her to avoid ligitation. There were no other documented performance issues.

Elizabeth

mwild31 · October 2003

Hi Franfields - are we sure the exempt employee is really exempt? If the employee has used up all of their paid time off - I'm unclear as to how this is a problem - unless they themselves are asking for unpaid time. Just out of curiousity - do you know why the person is late or absent? Has the employee's supervisor spoken with the exempt employee yet? I wouldn't even consider docking pay until you and management have a clear idea of what's going on with this employee.

Down_the_Middle · October 2003

Hatchetman's absolutely correct about not docking the employee, but remember, it's the employer's prerogotive to designate an expected starting time. If the individual continues to abuse that, then the way to deal with it is via performance. Neither Congress nor FLSA ever intended exempt staff to choose their own working hours and ignore the employer's general work rules. Some organizations take a very conservative approach and let exempt staff show up, disappear and continue to pay them. Something's wrong with that pix and is a management problem.......... a topic for another day! The suggestion that maybe this position is not exempt may have value.

franfields · October 2003

Thanks one and all for your advice. I am trying to find a creative solution :-? since nothing else has worked. Yes, she is exempt, a CPA, in a supervisory role, to boot. It's a long story but she is stressed and has been seeing a doctor. She wants to stay on for another six months. Management also wants this because she is knowledgeable and a good worker as long as she is here to get the job done. That is the rub. One of the things I was considering next was intermittent FMLA (if she really is under a doctors care), incenting her to come in since she will be unpaid if she doesn't.

I know, some of you are probably shaking your heads wondering if I have lost my mind. 8-| Any other thoughts?

marc · October 2003

I can really empathisize with your problem. When a key number cruncher goes down, it can really bollox up the works. They end up with significant historical information and technical information regarding all sorts of complicated financial transactions that can be almost impossible to reconstruct, if indeed reconstruction is even possible. I would suggest you immediately get someone else in to start the process. During the next six months you may be lucky to get some of her help and historical information about where the skeletons are buried. But if you wait, the search for the bones will become even more difficult. You cannot cross train for every position, but it is important to have some sort of transition plan for key positions.

Get a temp-to-hire in, or promote the next subordinate accouting person, or recruit someone from your outside audit team to help out. You will spend some dollars, but is going to happen one way or the other.

HRQ · October 2003

Leave it to the Forumites to get the full and complete story! This went from an exempt who can't/won't manage to arrive to work on time, to an exempt who may be eligible for intermittent FMLA and who is leaving soon anyway.

In my attempt to keep my posts brief, I've left out lots of "little" facts that later became important.

Just feeling a little bit warm and fuzzy about the Forum today. xhugs

Leslie · October 2003

Thanks guys - have a UI hearing next week over just this issue - an exempt supervisor termed for excessive tardies. She didn't get UI and has now appealed. Needed some perfect wording, and got it here. Like HRQ, sometimes you find things on this Forum you didn't even know you were looking for. x:7

Hatchetman · November 2003

Interesting about the FMLA. It may turn out to be your "life saver."

Remember, if she is eligible to reduced FMLA (which she then has a right to implmeent) you may dock her pay due to missed FMLA time each day (if the doctor connects the dots between coming in late and the medical need for reduced FMLA, that would then address your initial issue).

DiDi · October 2003

Perhaps this person just doesn't have enough to do. Are there any additional tasks/responsibilities they could take on? Being exempt means you are paid for the work you do regardless of how long (or not) it takes to do it. The payoff for not receiving overtime when you work those 50-60 hour weeks is that there may be times you only have to work less than 40-hour weeks. Another idea: you might re-evaluate the position requirements and consider making it a 4-day per week job (and adjust the salary accordingly). We have a small number of exempt employees who have asked for a 4-day work week on a regular, ongoing basis, and we've allowed it. Their salary is 80% of the full-time salary. On occasion (i.e. during peak periods, prior to important business meetings/events, etc.), they may need to work a 5th day. We pay them the full-time salary rate for those weeks. They appreciate the flexibility and work/life balance, and so far nobody has abused it.

Exempt - Dock Pay

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