FLSA Question

I have a question regarding a salaried exempt employee. He comes to work when he wants and leaves when he wants. He has some health issues and has scheduled doctor appointments about 3 times per month. I don't think that he usually puts in 40 hours per week. The definition of a regular full-time employee in the Employee Handbook is ..."who are normally expected to work 40 hours or more hours per week". He turns in PTO requests for paid time off if it's for personal business and he does not consider doctor appointments, or if he gets sick while at work, personal business IF he works 4 or more hours in the same day of the appointment.

I know that under FLSA rules we DO NOT COUNT HOURS on salaried exempt employees, but how do you "control" abuse? How does your company handle salaried exempt employees and time away from work during normal working schedule?


  • 15 Comments sorted by Votes Date Added
  • An hourly employee works by the hour, doing what you want when you want. An exempt employee works by the job. He/she has certain duties they are expected to perform and deadlines they are expected to meet. The job description should clearly lay out those duties. Sometimes duties include being at the office during regular business hours. This might be to supervise employees, or for some other business reason. Sometimes being at the office during such times is not really a requirement for the job.

    Look at this employee's job description and compare it to what he is doing. Is he getting his work done? Is he performing all of his duties in a timely manner? If he is but you feel he needs to spend more time at the office it might be time to review his job description and update it. If he has extra time on his hands, perhaps he needs more duties.

    In addition to his job description there is something else you might want to review. Look at your personnel policies. Does it address how time off for doctor's appointments should be handled? How do you handle this with other employees (what are your practices regarding doctor's appointments?) Do you have anything to fall back on if his abscences are causing other employees to become disgruntled? Perhaps it is time to update your policy manual if those things are not present.

    Do not look at his hours alone. That is the way to have the government decide he is actually an hourly employee (since you are treating him like one.) Instead, look at how he is performing his duties and following your policies and practices. That is the way to address the issue.

    Good luck!

  • PTO was set up to cover paid time off when you cannot be a work; sick pay, vacation pay, personal day, doctor's appointment, dental appointment, etc. What's happening is that he is abusing the salaried exempt status and not using his PTO time for partial days away from work as long as he has worked 4 or more hours on that day. I don't think that salaried exempt employees should be able to arbitrarily decide to leave work 2 hours early for a doctor's appointment and not use PTO time to cover the absence.

    I don't see how giving him more duties will stop him from leaving two hours early for doctor appointments without taking PTO. Perhaps we could address doctor appointments in our employee handbook; however, that IS the purpose of PTO.

  • Agree with Nae, if his work is suffering or not being completed then it is a performance issue and can be handled that way.

    We have many exempt employees whose duties do not require them to be at the Bank. They abuse this and come and go as they please - but as long as they are performing up to the requirements of their jobs, there is very little that can be done. I sympathize with you.
  • He has somehow got it into his head that as long as he works 4 hours he is ok. That was probably a policy at a previous job. At one place I worked the top management determined that any time off during a partially worked day meant that none of the day was charged to PTO. This was a long time ago and very common. At that time the only person I knew who worked exempt and used partial days for PTO was a government employee where they used that same 4 hour rule. Many cases have gone to court since then, and the DOL has made changes several times, so it is much easier to charge PTO banks than before. I would be willing to bet money that he got his 4 hour rule ideas from someone who worked in government.

    My current management's position is that exempt employees are trusted and professional and do not need to be babysat. They are truly looked at as exempt jobs and hours are not tracked. So basically, if an employee works 15 minutes in any given day then NONE of the rest of the day gets charged to their PTO bank, even if they only work 15 minutes. The result is that while many exempt employees take a lot of partial days, they are very devoted and willing to sacrifice for the company. The success of our company is seen as a joint mission by all the exempt employees. While I sometimes snivel when an exempt employee seems to be gone alot, as long as they are doing their [B]job [/B]I have no grounds to complain. And when I look at the overall picture, I can see the good far outweighs the bad.

    You are clearly exasperated with this employee, and it was just as clear that you did not like my advice. Still, it is the only advice I can give you. As you can see from where I work, there are plenty of places where no partial days get charged to PTO. You need to review the situation and determine if he is performing as stated in his job description or not. Otherwise you sound like you have hourly expectations from an exempt employee, which can only get you into hot water.

    Good luck.

  • Theresa,

    It is the supervisor's responsibility to control abuse and the supervisors authorization to do so is tied to the company's policy and the employee's job description just as Nae and KSR mentioned.

  • I think there are a several things you can do to reign in the employee. First, you can set a regular schedule for an exempt employee. Second, you can require the employee to check in with his supervisor before he leaves early. Third, I know this to be true for public employers, so you might check with DOL if you are a private sector employer; but you can require an employee to charge his leave banks for absences no matter how little time. So, if the exempt employee leaves two hours early, you can require that the employee use sick leave, vacation leave, PTO, etc. for those two hours. Once the employee exhausts his leave banks, you cannot dock the employee for the absences. Fourth, you can deny time off for vacation/PTO if the employee has exhausted his vacation leave (unless your policies say differently).

    Next, if the employee is taking time off for doctor's appointments, you can require he produce doctor's note (again, this should be consistent with your policies). Also, if his health-related absences are that frequent, there is evidence that he has a chronic health condition. You should invoke FMLA.

    Lastly, I agree with others, determine whether or not he is satisfactorily performing his job. If he is not, then hold him accountable by applying your disciplinary process. If he is performing satisfactorily, while working less than full-time on a regular basis, then maybe the job should not be full-time. You can reduce the job to part-time.
  • My understanding of the FLSA is that for exempt employees you can only make deductions from their PTO, Sick, Vacation, Personal, etc. in full day increments except for FMLA leave, jury or witness fees, or military pay.

    Below are the seven exceptions to the no pay-docking rule for exempt employees:

    1. Absence for one or more full days for personal reasons, other than sickness or disability

    2. Absence for one or more full days due to sickness or disability if deductions made under a bona fide plan, policy, or practice of providing wage replacement benefits for these types of absences

    3. To offset any amounts received as payment for jury fees, witness fees, or military pay

    4. Penalties imposed in good faith for violating safety rules of “major significance”

    5. Unpaid disciplinary suspension of one or more full days imposed in good faith for violations of written workplace conduct rules

    6. Proportionate part of an employee’s full salary may be paid for time actually worked in the first and last weeks of employment

    7. Unpaid leave taken pursuant to the Family and Medical Leave Act (no full day restriction, may be taken in the lowest increment normally allowed by the company)

    I hope this helps.

  • I believe you can require employees to use leave banks in increments of less than a full day. When with a former employer, we received a DOL opinion letter that said we could do so. (The letter was written in relation to inclement weather, but the theory is the same.) DOL's bottom line was that by using paid leave, the employee was not suffering a reduction in pay. DOL does not view docking LEAVE as docking PAY.
  • I'd hang on to that letter because you may need it someday. Item #2 clearly states that it applies to full days. Also, a good rule of thumb: when in doubt, check with a qualified employment law attorney before taking action.

  • David S and I both work for governments. . see above re: 4 hour rule. .we charge vacation or sick when the ee has worked four hours or less. . over 4, no and have never had an issue
  • If this individual is truly exempt, as others have said, he is paid for doing a job and as long as that job is getting done, there really shouldn't be an issue.

    If neither management nor the employee's supervisor see an issue with his attendance, I really don't think there is much that can be done.

    Being an exempt level employee means that you are, essentially, "on call" 24/7 and there are many times exempt level employees are required to work odd hours and/or work outside of regular business hours. The flexibility these individuals are afforded as a result of their status is the trade off.
  • [SIZE=3]On a philosophical basis, I agree with most of what has already been posted. However, on a legal basis... you most certainly [B][U]can[/U] [/B]count hours. You just can't adjust his pay for partial absences. You control the abuse through your regular disciplinary policy, and should address abuse of sick time or misrepresenting sick time.[/SIZE]
  • [QUOTE=Sharon McKnight SPHR;716190]My understanding of the FLSA is that for exempt employees you can only make deductions from their PTO, Sick, Vacation, Personal, etc. in full day increments except for FMLA leave, jury or witness fees, or military pay.

    Per the DoL you CAN dock PTO, vacation, sick, leave, etc. in LESS than full day increments.

    Where the confusion may lie is that the regs say you can not dock the SALARY. No where in the regs does it say you can't dock a PTO bank. DoL doesn't care what pot of money the salary comes from - labor or leave or whatever. Just that the employee gets the full salary for the week (with the exceptions you noted).

    Here is the opinion letter from DoL.

  • The way dbutton explained it is also my understanding.
  • I have to say, this is a new one on me. Just goes to show, the longer you live the more you learn.

    Sharon :-O
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