Exempt - lack of work

Shadowfax · March 2005

Does anyone disagree that the rules on exempt - lack of work - have not changed? That is, for an exempt to remain exempt, any time off for lack of work must be at least one week. This comes up in the context of asking ees to take a day off without pay because of slow times, and not allow them to use pto. And in the case of salaried non exempt, it just wouldn't make any difference - right? I'm afraid I'm having a senior moment this AM.

pork1 · March 2005

SHADOWFAX: I believe you are right for the non-exempt "with early coordination" the plant is shut down for any known period of time and the non-exempt is not paid unless they take advantage of any other timed benefit. No workey/no pay for no workey.

Now EXEMPT, I believe that it has been changed, but I have not seen it in any published manual. The change is that the company can shut down for less than a week and the EXEMPT ee must take paid benefits to make up the difference in order to receive a full weekly paycheck. My assitant is going to a payroll seminar early next month and this is one of the questions, I have asked her to get documentation / clarity. I have looked all over the DOL web page and can not come up with any words that represent your question. If you find one or if someone on our forum has one I hope they will post it.

PORK

crawfod · March 2005

I believe the silence of other posts indicate you're correct. "In general, if the employee is ready, willing and able to work, deductions may not be made for time when work is not available." (29 CFR 541.602(a)) Plus there are 6 exceptions listed subject to reduction, but otherwise exempt employees get full salary for any week in which they perform work, regardless of quality or quantity. Non-exempts get paid only for actual hours worked. Of course, they can file for unemployment but won't meet the waiting period for benefits. Any reason why they can't use paid pto?

Shadowfax · March 2005

I appreciate you and Pork chiming in here. I had the same 'feelings' as Pork when the issue first came up, then when I went looking, couldn't find any support for the position. I went back over some of the summaries I got addressing the changes and couldnt even find any reference to a posible change in this regard. The reasoning on the pto is plain and simple:cash flow. I hope others will jump in here if they have any thoughts.

pork1 · March 2005

SHADOWFAX: Do a Google with the numbers and letters in Crawford's post. I did it and boom there it is, I printed it off and gave to my assistant the specific information and ask her to get it clarified when she attends the seminar early next month. In the mean time, I have instructed her to go by the words printed out from the DOL reference.

Thanks to CRAWFORD, I learned a new research tool, just print the numbers and hit search! Numbers will take you directly to the referenced paragraph.

PORK

Shadowfax · March 2005

Pork, now you have totaly confused me. Crawfords cite was where I was looking when I decided there had been NO change in this regard. I took your first post to suggest you believed there was a change. Are you saying you see something in the 602 (b) exceptions to make you think you can fail to pay for less than a week because of un anavailability of work? Keep in mind my situation contemplated NOT paying, and, NOT permitting use of PTO = reduction of salary for the # of days not worked. What I see is clear enough - nothing has changed in this area.

crawfod · March 2005

Shawowfax, just to jump back in here, it is my interpretation that no reduction would be permitted for your circumstance of lack of available work, unless the exempt employee worked zero hours in the affected week.

pork1 · March 2005

SHADOWFAX: The Federal District Court for the Eastern District of Pennsylvania, the court noted that under the salary basis test, the general rule is that a salaried ee is not to be "docked" pay because of a reduction of hours worked or quality of the work performed during the course of a workweek. This general rule is subject, however, to exceptions. The court noted that only partial-day deductions from salary are PROHIBITED by the salary basis test, and full-day deductions for absences due to sickness or disability can be made if the exempt employee has exhausted his leave allowance under the employer's bona fide benefits plan. This brings me then to the conclusion that if the company has a PTO benefits plan in place, the days without pay could be recorded for days missed for illness and disability, if the ee has exhausted the bank. The days missed when work is not provided due to closures, even though the non-exempt would either use PTO or get no pay due, the EXEMPT employee would continue to get paid for the closed days. This to me does not seem fair and consistent! Maybe this same court will someday clean up the confusion!!!! Everything is very clear to me except, "the closed days for repair and maintenance", and this is the point that I have tasked my assistant to get clarified, because I have not seen any written words from anyone in authority, I remain confused about this point.

Thank goodness, I am in an industry today that does not close 365 days a year and this concern for actual practice of the regulations will not come my way again. I still would like to know the position of wage and hour on this issue.

PORk

Exempt - lack of work

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