Exempt and Missing Time

njjel · July 2007

Do I understand the FLSA correctly that if an exempt ee uses up all of their accrued leave bank that the employer may dock their pay for the time they have missed? Can we dock them for partial as well as full days missed?

We have an exempt ee who has only been here since December so they don't qualify for FMLA and she has been out a lot to take care of her ill husband.

Until now she has had accrued leave time to cover the missed time, however this current pay she will be short 2 and half days of accrued time and payroll wants to know if they can dock her.

joannie · July 2007

If so stated in your policy, after an exempt ee uses all accrued leave, you may deduct for full days missed, but not partial days.

njjel · July 2007

Can you direct me to where that is stated please?

joannie · July 2007

You should be able to find it here:

[url]http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17g_salary.htm[/url]

njjel · July 2007

OK so if an exempt ee uses all their accrued time and are out for a full day, we can not pay them for that day correct?

joannie · July 2007

That's my understanding, if you have a policy that specifies such.

njjel · July 2007

We don't have a written policy but if hourly ee's use all their accrued time they get docked. I also didn't see it anywhere in the reg that said it had to be a written policy. Did i miss something?

joannie · July 2007

Circumstances in Which the Employer May Make Deductions from Pay

Deductions from pay are permissible when an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also, an employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.

To me "bona fide plan, policy or practice" would indicate "written". If policy was not written, when questioned how would you prove you had that policy?

njjel · July 2007

I'm thinking that the very fact that we have a certain number of PTO days speaks for itself that when you have no more days you get no more pay. Kind of like a common sense type of thing. Thanks for the info. Anyone else see this any other way - chime in please.

2445428 · July 2007

"policy or practice" If it is your "practice" to not pay unless pto is available, then that is your practice and I would think you are safe to dock whole day from exempt ee out of pto.

However, I would put my "practice" in writing and have a "policy" a.s.a.p.

marc · July 2007

It is my understanding that the bona fide plan has to do with just having a sick leave policy, not anything specific about docking exempt pay.

Catbert46 · July 2007

Agree with Marc. That is my understanding as well. It is talking about a sick leave, vacation, or PTO policy. In some instances an employer may not have a specific sick/PTO policy for exempt employees and in that case you would have trouble justifying docking their pay. But if you have a policy that indicates how much PTO they get and have records indicating they have used all that time then you shouldn't have a problem.

njjel · July 2007

Yes, that is what we have. We accrue time off each pay and if an ee uses all their accrued time then if they are hourly their pay is docked. Typically we don't have exempts using all of their accrued time but it has just recently happened. I feel safe in docking the ee for a full day when she is out a full day. Thanks all!

Exempt and Missing Time

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