Chunk timing for salaried EE
denjen
93 Posts
Has anyone ever heard of chunk timing? Can the employer dock pay if a salaried ee doesn't reach the full 40 -45 hours per week? He makes it in everyday. Policy states that if you clock in that day, you are paid that day. My opinion is to not change policy based on one person and this one person is in violation of attendance, but should it reflect the paycheck?
Comments
Sec. 541.602 Salary basis.
(a) General rule. An employee will be considered to be paid on a
``salary basis'' within the meaning of these regulations if the
employee regularly receives each pay period on a weekly, or less
frequent basis, a predetermined amount constituting all or part of the
employee's compensation, which amount is not subject to reduction
because of variations in the quality or quantity of the work performed.
Subject to the exceptions provided in paragraph (b) of this section, an
exempt employee must receive the full salary for any week in which the
employee performs any work without regard to the number of days or
hours worked. Exempt employees need not be paid for any workweek in
which they perform no work. An employee is not paid on a salary basis
if deductions from the employee's predetermined compensation are made
for absences occasioned by the employer or by the operating
requirements of the business. If the employee is ready, willing and
able to work, deductions may not be made for time when work is not
available.
(b) Exceptions. The prohibition against deductions from pay in the
salary basis requirement is subject to the following exceptions:
(1) Deductions from pay may be made when an exempt employee is
absent from work for one or more full days for personal reasons, other
than sickness or disability. Thus, if an employee is absent for two
full days to handle personal affairs, the employee's salaried status
will not be affected if deductions are made from the salary for two
full-day absences. However, if an exempt employee is absent for one and
a half days for personal reasons, the employer can deduct only for the
one full-day absence.
(2) Deductions from pay may be made for absences of one or more
full days occasioned by sickness or disability (including work-related
accidents) if the deduction is made in accordance with a bona fide
plan, policy or practice of providing compensation for loss of salary
occasioned by such sickness or disability. The employer is not required
to pay any portion of the employee's salary for full-day absences for
which the employee receives compensation under the plan, policy or
practice. Deductions for such full-day absences also may be made before
the employee has qualified under the plan, policy or practice, and
after the employee has exhausted the leave allowance thereunder. Thus,
for example, if an employer maintains a short-term disability insurance
plan providing salary replacement for 12 weeks starting on the fourth
day of absence, the employer may make deductions from pay for the three
days of absence before the employee qualifies for benefits under the
plan; for the twelve weeks in which the employee receives salary
replacement benefits under the plan; and for absences after the
employee has exhausted the 12 weeks of salary replacement benefits.
Similarly, an employer may make deductions from pay for absences of one
or more full days if salary replacement benefits are provided under a
State disability insurance law or under a State workers' compensation
law.
(3) While an employer cannot make deductions from pay for absences
of an exempt employee occasioned by jury duty, attendance as a witness
or temporary military leave, the employer can offset any amounts
received by an employee as jury fees, witness fees or military pay for
a particular week against the salary due for that particular week
without loss of the exemption.
(4) Deductions from pay of exempt employees may be made for
penalties imposed in good faith for infractions of safety rules of
major significance. Safety rules of major significance include those
relating to the prevention of serious danger in the workplace or to
other employees, such as rules prohibiting smoking in explosive plants,
oil refineries and coal mines.
(5) Deductions from pay of exempt employees may be made for unpaid
disciplinary suspensions of one or more full days imposed in good faith
for infractions of workplace conduct rules. Such suspensions must be
imposed pursuant to a written policy applicable to all employees. Thus,
for example, an employer may suspend an exempt employee without pay for
three days for violating a generally applicable written policy
prohibiting sexual harassment. Similarly, an employer may suspend an
exempt employee without pay for twelve days for violating a generally
applicable written policy prohibiting workplace violence.
(6) An employer is not required to pay the full salary in the
initial or terminal week of employment. Rather, an employer may pay a
proportionate part of an employee's full salary for the time actually
worked in the first and last week of employment. In such weeks, the
payment of an hourly or daily equivalent of the employee's full salary
for the time actually worked will meet the requirement. However,
employees are not paid on a salary basis within the meaning of these
regulations if they are employed occasionally for a few days, and the
employer pays them a proportionate part of the weekly salary when so
employed.
(7) An employer is not required to pay the full salary for weeks in
which an exempt employee takes unpaid leave under the Family and
Medical Leave Act. Rather, when an exempt employee takes unpaid leave
under the Family and Medical Leave Act, an employer may pay a
proportionate part of the full salary for time actually worked. For
example, if an employee who normally works 40 hours per week uses four
hours of unpaid leave under the Family and Medical Leave Act, the
employer could deduct 10 percent of the employee's normal salary that
week.
(c) When calculating the amount of a deduction from pay allowed
under paragraph (b) of this section, the employer may use the hourly or
daily equivalent of the employee's full weekly salary or any other
amount proportional to the time actually missed by the employee. A
deduction from pay as a penalty for violations of major safety rules
under paragraph (b)(4) of this section may be made in any amount.
If this is an exempt employee and the employee is out on an FMLA leave, is he eligible for short term disability or is he out to care for a family member?
Do you or have you had another employee in a similar situation and if so, how was the pay issue dealt with?
Be sure that you are treating all employees that are similarly situated the same or you could have real problems.
He is on FMLA so he can attend treatments. I don't think he would qualify for STD.
We had another ee that we put on intermitted wage to care for a parent. She never was placed on FMLA, by agreement of both ee and er.
We are trying to find something that everybody can work with, and won't bring down the morale of his departmnet or set a precidence.
All ees can be hourly or salaried ees with OT, only certain classifications can be exempt from OT.
Section Number: 825.206
Section Name: May an employer deduct hourly amounts from an employee's salary, when providing unpaid leave under FMLA, without affecting the employee's qualification for exemption as an executive, administrative, or professional employee, or when utilizing the fluctuating workweek method for payment of overtime, under the Fair Labor Standards Act?
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(a) Leave taken under FMLA may be unpaid. If an employee is
otherwise exempt from minimum wage and overtime requirements of the Fair
Labor Standards Act (FLSA) as a salaried executive, administrative, or
professional employee (under regulations issued by the Secretary), 29
CFR Part 541, providing unpaid FMLA-qualifying leave to such an employee
will not cause the employee to lose the FLSA exemption. This means that
under regulations currently in effect, where an employee meets the
specified duties test, is paid on a salary basis, and is paid a salary
of at least the amount specified in the regulations, 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. The fact
that an employer provides FMLA leave, whether paid or unpaid, and
maintains records required by this part regarding FMLA leave, will not
be relevant to the determination whether an employee is exempt within
the meaning of 29 CFR Part 541.
(b) For an employee paid in accordance with the fluctuating workweek
method of payment for overtime (see 29 CFR 778.114), the employer,
during the period in which intermittent or reduced schedule FMLA leave
is scheduled to be taken, may compensate an employee on an hourly basis
and pay only for the hours the employee works, including time and one-
half the employee's regular rate for overtime hours. The change to
payment on an hourly basis would include the entire period during which
the employee is taking intermittent leave, including weeks in which no
leave is taken. The hourly rate shall be determined by dividing the
employee's weekly salary by the employee's normal or average schedule of
hours worked during weeks in which FMLA leave is not being taken. If an
employer chooses to follow this exception from the fluctuating workweek
method of payment, the employer must do so uniformly, with respect to
all employees paid on a fluctuating workweek basis for whom FMLA leave
is taken on an intermittent or reduced leave schedule basis. If an
employer does not elect to convert the employee's compensation to hourly
pay, no deduction may be taken for FMLA leave absences. Once the need
for intermittent or reduced scheduled leave is over, the employee may be
restored to payment on a fluctuating work week basis.
(c) This special exception to the ``salary basis'' requirements of
the FLSA exemption or fluctuating workweek payment requirements applies
only to employees of covered employers who are eligible for FMLA leave,
and to leave which qualifies as (one of the four types of) FMLA leave.
Hourly or other deductions which are not in accordance with 29 CFR Part
541 or 29 CFR Sec. 778.114 may not be taken, for example, from the
salary of an employee who works for an employer with fewer than 50
employees, or where the employee has not worked long enough to be
eligible for FMLA leave without potentially affecting the employee's
eligibility for exemption. Nor may deductions which are not permitted by
29 CFR Part 541 or 29 CFR Sec. 778.114 be taken from such an employee's
salary for any leave which does not qualify as FMLA leave, for example,
deductions from an employee's pay for leave required under State law or
under an employer's policy or practice for a reason which does not
qualify as FMLA leave, e.g., leave to care for a grandparent or for a
medical condition which does not qualify as a serious health condition;
or for leave which is more generous than provided by FMLA, such as leave
in excess of 12 weeks in a year. Employers may comply with State law or
the employer's own policy/practice under these circumstances and
maintain the employee's eligibility for exemption or for the fluctuating
workweek method of pay by not taking hourly deductions from the
employee's pay, in accordance with FLSA requirements, or may take such
deductions, treating the employee as an ``hourly'' employee and pay
overtime premium pay for hours worked over 40 in a workweek.
Thank you for your help though. I am going to practice getting around the DOL website because I still couldn't find this information. Any tricks?
[url]http://www.dol.gov/esa/regs/fedreg/final/2004009016.htm[/url]