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exempt employees on vacation
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exempt employees on vacation
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Whenever I attend workshops and training seminars, I always pick up great bits of information. I also often pick up crazy bits of info from other attendees, as I did yesterday. Now, either I am more p
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Forums » Topic Forums » Legal Forum » exempt employees on vacation
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exempt employees on vacation
posted at 5/21/2010 4:19 AM EDT
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Posts: 323
First: 6/15/1999 Last: 9/9/2011 |
Whenever I attend workshops and training seminars, I always pick up great bits of information. I also often pick up crazy bits of info from other attendees, as I did yesterday. Now, either I am more pitifully uninformed that I thought, or I am more pitifully gullible than I should admit.... here it is: if an EXEMPT employee is called or emailed or performs any work while on leave that is being taken from their leave bank (bonafide leave policy and practices, here), that work time cannot be deducted from the leave bank. Has anyone heard of such?
I know all the work time/non work time goodies for NON exempt employees. |
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exempt employees on vacation
posted at 5/21/2010 4:29 AM EDT
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Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
technically that is true. One way to address this is:
An exempt employee is having a voluntary absence for a full day when his boss, who can't seem to do with this employee, calls them. The conversation lasts for 10 minutes. That 10 minutes is time worked and should be paid. The remainder of the day off can be deducted from a bona fide time off plan. The only time this doesn't work is if the exempt employee doesn't have any accrued time or access to time under this plan. Then, they get paid for the entire day. |
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exempt employees on vacation
posted at 5/21/2010 4:55 AM EDT
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Posts: 323
First: 6/15/1999 Last: 9/9/2011 |
So, Wage and Hour are happy as long as the employee is paid for the full day - they don't care how the employer designates the pay (regular or vacation leave). Therefore, it is at the employer's discretion to break the time down into this or that - as long as they do it the same for ALL exempt employees. ??? It would seem terribly cumbersome to calculate and maintain such detailed records - an hour here, an hour there. |
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exempt employees on vacation
posted at 5/21/2010 5:26 AM EDT
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Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
§ 541.602 Salary basis
(b) (2) Deductions from pay may be made for absences of one or more full days occasioned by sickness or disability (including work-related 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 such sickness or disability. The employer is not required to pay any portion of the employeeâs salary for full-day absences for which the employee receives compensation under the plan, policy or practice. Deductions for such full-day absences also may be made before the employee has qualified under the plan, policy or practice, and after the employee has exhausted the leave allowance thereunder. Thus, for example, if an employer maintains a short-term disability insurance plan providing salary replacement for 12 weeks starting on the fourth day of absence, the employer may make deductions from pay for the three days of absence before the employee qualifies for benefits under the plan; for the twelve weeks in which the employee receives salary replacement benefits under the plan; and for absences after the employee has exhausted the 12 weeks of salary replacement benefits. Similarly, an employer may make deductions from pay for absences of one or more full days if salary replacement benefits are provided under a State disability insurance law or under a State workersâ compensation law. (3) While an employer cannot make deductions from pay for absences of an exempt employee occasioned by jury duty, attendance as a witness or temporary military leave, the employer can offset any amounts received by an employee as jury fees, witness fees or military pay for a particular week against the salary due for that particular week without loss of the exemption. |
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exempt employees on vacation
posted at 5/21/2010 6:48 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
FLSA is only concerned that the exempt employee is paid the full day.
It is up to company policy on how PTO is docked for the day. For example, I tell my exempt employees to let me know if they work part of a day that was originally PTO because I will credit it back to their PTO. But usually they only do so if it is more just a few minutes. If PTO is exhausted then yes, the employer would still have to pay the exempt employee a full days pay. I know a few companies that charge a whole day against any PTO when time is missed, regardless of the amount of time missed. Fair? That's in the eyes of the beholder. Legal? Yes (at least in most states...you would need to check your state laws as your mileage may vary especially if you are in CA!) |
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exempt employees on vacation
posted at 5/21/2010 7:50 AM EDT
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Posts: 323
First: 6/15/1999 Last: 9/9/2011 |
(Please let me preface this post by saying at the above mentioned training seminar, where presentations were provided by governing agencies concerned, variations on this question dominated one session and no one ever seemed to satisfactorily understand the answers given. Why is that?)
From HRPro: "The employer is not required to pay any portion of the employeeâs salary for full-day absences for which the employee receives compensation under the plan, policy or practice. Deductions for such full-day absences also may be made before the employee has qualified under the plan, policy or practice, and after the employee has exhausted the leave allowance thereunder." My understanding of this as it relates to my organization's practices is that if OUR exempt employee (who has not been employed with org long enough to have earned any sick leave or vacation leave) comes to work on Monday and works 3 hours, then leaves because they are ill and THEN is out Tues, Weds, Thurs, and THEN returns on Friday - we must pay that employee equivalent full day(s) salary for Monday and Friday, but we are not required to pay for T/W/Th. If that employee DID have paid time in their leave bank, we could deduct 5 hours from that bank for Monday and 8 hours each for T/W/Th. Also, if the employee DOES have paid leave in their bank, but exhausts that leave, we can deduct for full days missed. Is this correct? From rrupert: "FLSA is only concerned that the exempt employee is paid the full day." That is SO clean and easy....BUT, what is all this talk about "guaranteed salary"? The seminar presenter kept implying with his answers that if an exempt employee worked one hour of one day in a week, they still should be paid for the full week (with or without any PTO plan) - I will give them credit for stating one would probably not want to continue to employ this person if there were no legitimate or protected reason for this work schedule, but it still did not jive with other guidances. Sorry for length of this - it just makes me crazy! |
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exempt employees on vacation
posted at 5/21/2010 8:18 AM EDT
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Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
You have to put what the speaker said in context. One hour may or may not qualify the person for a full weeks pay. I would encourage you to read up on the salary basis, which is the paragraph I coited in my post above. It should help you. |
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exempt employees on vacation
posted at 5/21/2010 12:04 PM EDT
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Posts: 323
First: 6/15/1999 Last: 9/9/2011 |
I've been reading and reading.....and here is another scenario....new exempt employee has no paid time off banked yet, organization closes for Christmas week, two of the 5 days are paid holidays so the new exempt employee gets paid for those two days, but not the other three (all other staff have to use leave time from their banks to cover those three days, if they want to get paid for them). No work is performed by ANYONE that week, but the new exempt employee IS willing and able to work (and their is concievably work that they CAN do - but the business is CLOSED). REquired to pay for full week or not?
Vacation and Personal Time Off In addition to meeting certain duties tests, to qualify for exemption under the Regulations, Part 541, generally an employee must be paid at a rate of not less than $455 per week on a salary basis. As a general rule, if the employee performs any work during the workweek, he or she must be paid the full salary amount. The employee need not be paid for any workweek during which he or she performs no work; for example, when an employee is on vacation for the entire workweek. An employer may not make deductions from an exempt employee's pay for absences caused by the employer or by the operating requirements of the business. If the exempt employee is ready, willing and able to work, deductions from the employee's pay may not be made when no work is available. One exception to this general rule is that an employer may make deductions for full day absences due to personal reasons (other than sickness or disability) of the exempt employee. If an employer offers his or her employees some number of days to be used for personal absences, taking deductions from an exempt employee's accrued leave account to cover an absence subject to the policy (in any amount, including partial days) does not violate the salary basis test. In addition, special rules regarding leave apply to exempt employees of public agencies. |
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exempt employees on vacation
posted at 5/21/2010 1:25 PM EDT
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Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
If the individual was ready and able to work then they must be paid because the business is closed anbd the time off is not voluntary.
Two parts of the salary basis make this time compensable (or the exemption is possibly forfeit) § 541.602 Salary basis. (a) General rule. ... An employee is not paid on a salary basis if deductions from the employeeâs predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business. If the employee is ready, willing and able to work, deductions may not be made for time when work is not available. The other I mentioned above. The effect is: § 541.603 Effect of improper deductions from salary. (a) An employer who makes improper deductions from salary shall lose the exemption if the facts demonstrate that the employer did not intend to pay employees on a salary basis. An actual practice of making improper deductions demonstrates that the employer did not intend to pay employees on a salary basis. The factors to consider when determining whether an employer has an actual practice of making improper deductions include, but are not limited to: the number of improper deductions, particularly as compared to the number of employee infractions warranting discipline; the time period during which the employer made improper deductions; the number and geographic location of employees whose salary was improperly reduced; the number and geographic location of managers responsible for taking the improper deductions; and whether the employer has a clearly communicated policy permitting or prohibiting improper deductions. |
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exempt employees on vacation
posted at 5/21/2010 3:53 PM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
It is my understanding that the "full week" part trumps the "ready and willing to work" part. So if the employer is closed for a full week, the other part doesn't matter.
Here's a good article that talks about closures due to weather (but it would also apply to other business related closures) http://hrhero.com/hl/articles/2007/02/02/pay-time-off-issues-for-office-closings-due-to-inclement-weather/ And here is another: http://blog.griegolaw.com/2008/11/12/does-you-have-to-pay-exempt-employees-if-the-office-is-closed-for-a-week/ |
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