Just a quick question:

Is there such a thing as a Hourly Exempt Employee ?

I was an exempt employee and was docked for missing time because of a medical reason and need to know if there is anything I can do about it.

Thanks!

Yes and no. There are something like 100 or so Exempt classifications and most of those classifications can indeed be paid hourly. However most of the Exempt classifications are very industry specific. For example, if you are a Sheepherder, then you are indeed Exempt and can be paid on a hourly basis. Since we do not know either your industry or your specific job duties, it is not possible to know which of the 100 or so Exempt classifications you are talking about. We could give you a better answer if you provided this information.

When most people talk about Exempt, they are refferring to the so-called White Collar exceptions. Within that group, there are a number of common Hourly Exempt exceptions. This would include doctors, lawyers, RNs, teachers and certain highly compensated computer professionals.

If you are normally Exempt paid on a Salaried basis, then the docking rules are 29 CFR 541.602 (http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/29CFR541.602.htm). However the docking rules talk about actually reductions in the salary, and not merely reductions in the vacation/PTO balance. The federal government does not care even a little bit about reductions in the vacation/PTO balance.

I'm a SW Engineer, so I guess it would be a computer professional. Does this help.

The main reason I'm asking is because we were made to work overtime without being paid, but if we missed work and had no PTO left we were paid by the hour. It just seems a little fishy to me.

Thanks

First of all, job titles per se do not mean anything. Exemptions are based on job duties, not job titles. Otherwise employers could just give all their janitors a "CEO" job title and make the overtime go away.

I am including a pointer to the actual exemption for Software Professionals. Some SW professionals can be exempt and some cannot. You are going to have to read the factsheet and figure out whether or not you can legally be exempt.
http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17e_computer.pdf

Past that, assuming that you legally can be exempt under this particular classification, then there are two different methods (Salaried and Hourly) that the employer can legally choose to use. The employer picks the method the employer wants to use, but then the employer is stuck with following all rules associated with the method. If the employer has already picked Salaried, then I have already given you the docking rules associated with that method. If the employer is paying you as Exempt Salaried and not following the 541.602 rules, then the employer is breaking the law and you could file a wage claim.

Yes I meet these rules .... Thanks for the help.

How much time did you miss for this medical reason and did it qualify for FMLA? There are actually two reasons I'm asking.

I had neck surgery, but before the surgery I would miss some hours each week or have to leave early because the pain was too much. Why?

Because it makes a difference to whether or not it was legal to dock your pay. There are times when even an exempt employee can legally have their pay docked.

However, what you have provided did not answer my questions. I'll clarify in case you're not familiar with FMLA.

1.) How many employees does your employer have within 75 miles of your location?
2.) How long have you worked for this employer?
3.) In the 12 months immediately preceding your leave, did you work a minimum of 1,250 hours?
4.) EXACTLY how much time did you miss? In full or partial day increments?

OK I'll try to answer these

1) not sure how many but there are over 500
2) At that time over 4 years.
3) yes
4) Again I'm not exactly sure but there were a few hours each week and sometime full days.

Does this help?

Based on your responses, FMLA did apply. FMLA is unpaid, protected medical leave and is one of a VERY few times that an employer can dock an exempt employee's pay in either full or partial day increments.

So the likelihood is that the docking was legal. Even if you are exempt.

Thanks, but I thought they had to pay:
"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."

We did not have compensation for the loss of salary ......

541.602 (7) An employer is not required to pay the full salary for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act. Rather, when an exempt employee takes unpaid leave under the Family and Medical Leave Act, an employer may pay a proportionate part of the full salary for time actually worked. For example, if an employee who normally works 40 hours per week uses four hours of unpaid leave under the Family and Medical Leave Act, the employer could deduct 10 percent of the employee's normal salary that week.

As DAW has indicated, FMLA is an exception to the reg you quoted.

Just for clarification; If the poster is paid on an hourly basis "SW Engineer" then the exemption applicable is under 13(a)17 (computer hourly exemption), which must be $27.63 per hr or more, not under 13(a)1 the computer salary exemption. Therefore, if the exemption is under 13(a)17 you can not use the 541.602 (7) salary deductions. The 541 rules are applicable only to the 13(a)1 exemption, the worker must be paid on a salary basis, which is not the case here.

It is, however, fact that FMLA is an exception to all deduction laws and time taken that qualifies as FMLA is specifically and by statute allowed to be unpaid, regardless of employee status and regardless of pay method.