Hello all!!

I hope that someone here can help me in my current dilemma.

I currently work in the medical field, as a non-exempt employee. When I was initially hired I was given a "salary" or suspected annual pay based upon a 36 hour work week at "X" dollars per hour, as we are scheduled for this many hours in one week. Usually we work one 24 hour shift and one 12 hour shift per week, sometimes, but rarely, three 12's.

Recently our parent company adopted a new "Salary" model for the entire company that states that all employees be paid 40 hours of pay per week (basically to eliminate a payroll nightmare and standardize everybody's pay). With this pay, all hours must be accounted for in the 40 hours and overtime pay shall still be paid for any hours over 40. That sounds fair enough to me.

Here's the problem...we are still scheduled for 36 hours per week, this is what is required of us as the employees to work. In the field that I'm in it's difficult to schedule it any other way as our shift times are either 12 or 24 hours in length with NO deviation. We are being told that if we can not find or account for the hours between 36 and 40 hours we will be docked vacation time and or sick time in order to make up the time "missed". There are various ways in which to make up this 4 hours (assisting with training of new employees, outreach public relations, etc.), but the truth of the matter is that this affects large number of employees, and to accomodate that many people for 4 hours per week is VERY difficult for the company and is not always readily available.

Does my company have to make that 4 hours available to me every week since they now require me to account for 40 hours and not 36? If they can't provide me with this additional 4 hours can they dock vacation or sick time, even if I have tried to find a way in which to make this time up? Are there any links to labor law statutes that address this?

My fellow employees and I are worried that our vacation and sick time is going to be taken, all because our company mandates we account for 40 hours per week, schedules us for 36 and can't effectively offer us an additional 4 hours per week on a consistant basis.

Any help out there?

THANK YOU!!!

DAW, I'm kinda busy actually working this afternoon and this response is going to take more time than I have right now.

Over to you. :D

thanks...to whoever can help out. Just an add on...I'm working on trying to figure out whether we're considered exempt or non-exempt employees. while we meet the criteria of an exempt employee, we are hourly and do make time and one half after 40 hours.

Hope to hear back soon!

Does my company have to make that 4 hours available to me every week since they now require me to account for 40 hours and not 36? If they can't provide me with this additional 4 hours can they dock vacation or sick time, even if I have tried to find a way in which to make this time up? Are there any links to labor law statutes that address this?

Let me get this straight. You are WORKING 36 hours a week and being paid for 40? If you don't document 40 hours of work, you still get paid for 40, but your accrued paid time off is charged?

That is weird, not illegal -- you need to be paid for time worked and nothing more -- and not terribly bright, no matter how easy it makes payroll.

Agreed with Scott. The "normal" Non-Exempt Salaried rules are 29 CFR 778.113 and there is nothing in those rules that prevents the employee from docking the salary for the 4 hours not worked. There is nothing in state law that stops the employer from paying the whole salary and reducing vacation/PTO balance by 4 hours.

Having said that, I will agree with Scott that this is "weird", and am inclined to be skeptical of the intelligence of the employer for trying to force a square peg into a round whole. Since we are talking about Non-Exempt employee, why not just pay on an Hourly basis? Or why not base the salary on 36 hour weeks? IMO, the employer is going out of their way to make work for themselves and brass off the effected employees. Not illegal, but also not smart.

What, in fact, DO you do?

If it helps I did find that I am Salaried Non-Exempt, and I work as a Flight Paramedic in Phoenix.

I just find it odd that our employer pays us our "salaray" based upon 40 hours per week, knowing that we are only scheduled for 36 per week. We have to find ways to make up this additional 4 hours to meet our 40 or we are docked vacation and/or sick time if we can't.

The problem I have is that extra work isn't made readily available to us, so in the end I can lose my vacation and/or sick time, all because the company can't provide me with that additional 4 hours I need to make up the 40 hours they require. It's kind of a double edge sword because I realize that companies don't have to offer vacation or sick time to me, so taking it away is there perogative. I guess?

Is there anything that says an employer that requires 40 hours per week must provide the employee with the opportunity to work that number of hours?

No, there isn't. Strange but true.

Wow...that just seems very unfair. I thank everyone who has helped out so far.

I was able to get a little more info so I want to see if anyone knows the legality of this one. After further discussion with our payroll, they advised that they would only take hours away from our vacation time to compensate for the 4 hours, should we not be able to find anything to do within the company to actually work this time. After our vacation is gone, they will not touch our sick time but dock us 4 hours worth of pay. As a Salaried Non-Emempt employee can they do this? I had a brief discussion with a representative from the U.S. Dept. of Labor in Phoenix and she made it sound like they can't, but I want to verify if this is true.

If you were exempt, they would not be able to dock you for partial days unless FMLA was involved. Since you are non-exempt, unless you fall under a very rare exception, you technically do not have to be paid for any time you do not work, regardless of how you are generally paid.

As a Salaried Non-Emempt employee can they do this? I had a brief discussion with a representative from the U.S. Dept. of Labor in Phoenix and she made it sound like they can't, but I want to verify if this is true.

The US DOL in Phoenix provided you with the correct information, no deductions can be made from the salary of a non-exempt employee. It come from this reg...

However, keep in mind, that if the employer makes a deduction of those 4 hrs, and you have been paid above the applicable minimum wage, the US DOL, may not be able to take you claim. No FLSA violations has actually occured. I agreed with the above poster, this is very strange, contrary to published federal rules, but short of an actual FLSA violation...

29 CFR 778.114 - Fixed salary for fluctuating hours.
(a) An employee employed on a salary basis may have hours of work which fluctuate from week to week and the salary may be paid him pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours he is called upon to work in a workweek, whether few or many. Where there is a clear mutual understanding of the parties that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek, whatever their number, rather than for working 40 hours or some other fixed weekly work period, such a salary arrangement is permitted by the Act if the amount of the salary is sufficient to provide compensation to the employee at a rate not less than the applicable minimum wage rate for every hour worked in those workweeks in which the number of hours he works is greatest, and if he receives extra compensation, in addition to such salary, for all overtime hours worked at a rate not less than one-half his regular rate of pay...

For perhaps the 100th time, however, I will remind you that not all, or even most, employees who identify themselves as salaried non-exempt are being paid under the fluctuating workweek rule. And if they are not, then the regulation you quote does not apply.

Perhaps they should technically not be called salaried non-exempts if the fluctuating workweek rule is not being applied, I don't know. But even if so, nothing is ever going to change the common use of the term.