Exempt Consistently Working Fewer Than 40 Hours--Morale Affected

Quizmaster · October 2003

Assume the following facts: Salaried exempt employee in senior management consistently works fewer than 40 hours per week (usually 36-38) and has gradually been getting to this point by either arriving late or leaving early. The Employer has an expectation (unwritten) that all salaried exempt employees will be present and working during standard weekday office hours (8 1/2 hours per day with 1/2 hour of that time being devoted to a lunch break which may be taken on or off site). All other salaried exempt employees work at least 40 hours not including the lunch period. Other employees have noticed that this employee is present less than they are, causing morale to suffer. There is no desire to dock the employee's salary or to impose "serious" discipline--but management would like the employee to work the same hours as everyone else and resolve the morale issue. The employee seems to adequately perform his job in under 40 hours. It may be debatable whether his presence in the office is actually needed for the 2 to 4 hours per week he is not around. Would imposing a minimum 40 hour requirement on this employee offend the FLSA or do anything to adversely affect the exemption status? Would you recommend stating a "minimum 40" requirement in the employee handbook? Thanks for any and all comments.

marc · October 2003

We don't require a 40 hour work week for exempts, but we make sure they have enough work to take them at least 40 hours to finish. Our philosophy is if your work is really done, go home. If it becomes a trend, we did not give the individual enough work to do. Would you have the ee is question sit at their desk and play solitaire? That might cause morale to suffer.

In my opinion, it is up to his/her supervisor to make sure the work is getting done right. If it is, and there is still time available, give the ee some special assignments that will fill up the rest of the day. Senior management should have plenty of skills that would be useful is plenty of areas.

Quizmaster · October 2003

In principle, I agree with you, Marc. Unfortunately, I forgot to state the additional fact that "additional assigned duties" is not really a viable option with this employee. (I know this sounds bizarre, but work with me on this.) Among the several reasons this is not a viable option is that this employee's job duties have a tendency to be cyclical in nature. Thanks for the quick response.

mwild31 · October 2003

Don't put it in your handbook - instead meet with the employee & state the expectations of senior management. Also, don't forget something you already mentioned - if the employee's work is truly cyclical in nature, then I bet there are times when that employee puts in an extra 8 1/2 hours during the peak times, or it could be that the employee reads/studies/researches at home or maybe they work later than the rest of the group & the group doesn't know. Find out from the manager where they spend their time & address the issues or at least arrive at the peace of mind of knowing what's going on. If it's affecting morale - make sure the other employees focus first on their own jobs, rather than making assumptions about another manager. Finally, unless there are huge performance problems at stake here, my guess is the senior manager arrived at his position because of talent & hard work and you should exhaust all of the suggestions I mentioned above before believing the gripping of others. IMHO

Don D · October 2003

Sounds indeed a bit like a 101 test question. The employer's 'expectation' that all employees devote 8.5 hours to the business, interrupted only by a .5 hour on-site lunch break, smacks of nothing more than an hourly employee policy. Does the policy not also include the flexibility to march smartly to the latrine once each two hours, spending no more time on each visit than 3.5 minutes? As to whether or not this type of logic 'offends' the FLSA, I suspect you already know the answer to that or you would not have framed your question in that manner.

The senior executive who wrote and monitors such a policy is either a control freak or.....well, I don't know what else he may be.

hrinmi · October 2003

We have the opposite problem. Salaried employees consistently working 50-60 hrs one week, and 39 the next and our payroll wanting them to put in an hour of vacation time.

I think we are serioulsy risking their exempt status, but no one wants to tackle the issue.

Don D · October 2003

I don't know your particular culture, hrinmi, but typically 'payroll' is not a decision maker in such instances. Payroll is a function, not a point where decisions like this should be made. Certainly no employee should be made to take an hour of leave in the circumstance you cite. This is waaaay out of line and the 'payroll' person should be so instructed.

Hatchetman · October 2003

hrinmi, are these salaried exmepts or non-exmepts?

If the latter FLSA does address salaried, non-exmepts who work fluctuating hours. Essentially, they receive the same salary week in week out, without docking, regardless of the hours they work. And when they work over 40, they receive half time rather than time and a half.

Take a lok at the FLSA regualitns in the Code of Federal Regulations, Volume 29, Section 778.114.

[url]http://www.access.gpo.gov/nara/cfr/waisidx_03/29cfr778_03.html[/url]

And of course, 541.118 addresses the exempts who are salaired and under what condition their salary may be docked.

hrinmi · October 2003

They are salaried exempts.

There seems to be a lack of knowledge of what constitutes a salaried employee. My understanding and how I've personally been treated in past positions is that you are paid to do a job, no matter if it takes 50 hrs or 35 hrs.

I just found out about this problem last week when a few supervisors asked if payroll had the authority to do that.

The Director of HR is on vacation so once back, I'm going to let him know what is going on.

Never a dull moment in HR is there?

Exempt Consistently Working Fewer Than 40 Hours--Morale Affected

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