pay for exempt employee??????????????

mgold356 · June 2003

Does anyone know, I saw it somewhere, but I cannot locate it now, that even if you have a paid sick leave policy that you cannot deduct from an exempt employee if they have exhausted their sick pay. I know that you cannot deduct from them if they have worked any part of the day, but if they miss a whole day and they have no sick leave left, can you deduct without jeopardizing their exempt status? Thanks

Margaret Morford · June 2003

No. You cannot deduct unless they are on intermittent FMLA or during a suspension for a very serious safety violation. (All other suspensions without pay have to be for a minimum of five days.) Exempts are entitled to a whole pay check no matter how many or how few hours they work in a week's time. If they miss the complete week, I think you don't have to issue them a check. Other than that, you have to pay them their full weeks salary. However, you can discipline them for being absent without leave time to cover it.

Hope that helps.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

mgold356 · June 2003

Thank you for your response, however, I think you may have mis-understood my question. I know that it is legal to doc them if you have a written sick leave policy, you can make them take sick leave, however, what if they have used all of their sick leave? Can you dock them for missing a full day.

sonny · June 2003

No, I think Margaret understood it ..the answer is no

Don D · June 2003

Margaret's answer does address your particular question. You cannot dock the employee's pay in the instance you cite. Exempt ee pay can only be docked for FMLA absence or disciplinary no-pay suspension issues that involve five days absence, or if absent for the entire pay week. If disciplined, the ee cannot be docked for the disciplinary absence days IF he/she does work at all during that pay week. This answer applies to sick absences as well when the exempt has run out of sick leave. Can't dock if they work any part of the week. If they are absent for the entire week, you don't have to pay them for that week. So, there are only two instances, as I understand it, in which you can dock exempt pay: (1) if the ee for any reason does not work at all that week, (2) if the ee is on FMLA for any portion of the week the pay for that particular number of hours can be legally docked.

Kizzie · June 2003

I may be interpreting the Department of Labor regs incorrectly but I believe you can deduct for full days if the individual has exhausted his/her sick pay. Following is partial verbiage from Section 541.118 Salary basis/Chapter V - Wage and Hour Division, Department of Labor:

"(2) Deductions may be made, however, when the employee absents himself from work for a day or more for personal reasons, other than sickness or accident. Thus, if an employee is absent for a day or longer to handle personal affiars, his salaried status will not be affected if deductions are made from his salary for such absences.

(3) Deductions may also be made for absences of a day or more occasioned by sickness or disability (including industrial 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 both sickness and disability. Thus, if the employer's particular plan, policy or practice provides compensation for such absences, deductions for absences of a day or longer because of sickness or disability may be made before an employee has qualified under such plan, policy or practice, and after he has exhausted his leave allowance thereunder. It is not required that the employee be paid any portion of his salary for such days or days for which he received compensation for leave under such plan, policy or practice......".

Human Resources Manager · June 2003

Section 3 above allows for deducting salary due to illness only if the employee is receiving other compensation for that day, such as disability insurance. It does not refer to a sick leave policy. For the original post, section 2 is the one that applies.

Hatchetman · June 2003

[font size="1" color="#FF0000"]LAST EDITED ON 06-16-03 AT 11:00AM (CST)[/font][p]SEction 541.118(a)(3) clearly provides that as along as the exempt employee is subject to the employer's sick pay mechanism -- such as an emplyer's sick pay plan or accrued paid sick time -- the employer may dock the exempt employee's salary for every full day of absence due to illness or injury. This includes situations where the employee is not yet eligibile for the benefits or has EXHAUSTED the benefits without jeopardizing the exempt status.

"Deductions may also be made for absences of a day or more occasioned by sickness or disability (including industrial 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 both sickness and disability. Thus, if the employer's particular plan, policy or practice provides compensation for such absences, deductions for absences of a day or longer because of sickness or disability may be made before an employee has qualified under such plan, policy or practice, and after he has exhausted his leave allowance thereunder. It is not required that the employee be paid any portion of his salary for such days or days for which he receives compensation for leave under such plan, policy or practice. Similarly, if the employer operates under a State sickness and disability insurance law, or a private sickness and disability insurance plan, deductions may be made for absences of a working day or longer if benefits are provided in accordance with the particular law or plan. In the case of an industrial accident, the "salary basis" requirement will be met if the employee is compensated for loss of salary in accordance with the applicable compensation law or the plan adopted by the employer, provided the employer also has some plan, policy or practice of providing compensation for sickness and disability other than that relating to industrial accidents."

pay for exempt employee??????????????

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