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Docking pay for FMLA partial day absences Virginia

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  • Docking pay for FMLA partial day absences Virginia

    Alright, the saga continues:

    As stated in my previous post, I am now under intermittent FMLA and my bosses have been giving me a lot of grief about...everything.

    I just got a call from HR saying that they were now going to take any of my FMLA time, including partial day absences for appointments, and docking my vacation time from it. I am a salaried exempt EE.

    Our sick policy is "unlimited" sick time. Essentially, so long as it is not being abused, there is no pre-set amount of sick days and you take as many as you need. The HR rep originally told me that my time would continue to be paid without vacation time unless it became excessive. Since going on FMLA I have taken no whole day absences and for the year I am at about 2 days of total hours. In my humble opinion, not excessive.

    I found this and it was my understanding of the docking rules for exempt employees:

    The other thing that is upsetting about this is that with all of the extra hours I have worked the past two months, I have more that made up for any time gone for appointments/illness. My managers originally kept stressing for me to come in early/working lunch/stay late, but HR advised that it is a illegal for them to do so under FMLA. This seems like a workaround to me and somewhat retaliatory, although I'm sure proving that would be difficult.

    Any opinions or ideas?

  • #2
    That article is very old...from 2001. I didn't read it once I saw the date. That said, one of the very few reasons that an exempt employee's pay can be docked is for FMLA purposes.
    Absence Under the Family and Medical Leave Act (FMLA)

    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 exempt employee performs any work during the workweek, he or she must be paid the full salary amount.

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

    To qualify for exemption, employees generally must meet certain tests regarding their job duties and meet certain compensation requirements. Job titles do not determine exempt status. You should also review the other sections of this Advisor for help in determining whether the employee meets the duties tests for exemption.

    You may also want to explore the Family and Medical Leave Act Advisor which helps you answer questions about employee eligibility under the FMLA. It covers valid reasons for leave, employee/employer notification responsibilities and employee rights and benefits.

    As to the question of sick pay vs vacation pay, I'd ask for a copy of both policies. And see who determines or defines what is 'excessive'. Because I do agree with you that you should have the same rights as a sick employee who is not covered under FMLA to sick pay.


    • #3
      Interesting. In your opinion, what happens if I worked extra hours? I.e. I normally work 40, take 4 off for appointments, but stay 4 extra hours in the evening?


      • #4
        Apparently we do not have a written sick time policy per HR. It is the rep's understanding that it is "discretionary by department up to 15 days." Odd. Again, I have only missed 2 days this year. Vacation time policy only deals with accruals. Under the FMLA section:

        "Substitution of Paid Leave/Vacation
        If the Family and Medical Leave is for block leave for the employee’s own serious health condition, the employee may elect, but generally is not required, to use available vacation. If the Family and Medical Leave (either block or intermittent) is (i) to care for a family member with a serious health condition,
        (ii) as a result of the placement of a child for adoption, or (iii) to bond with a newborn child, the employee may be required to use available vacation. If the Family and Medical leave is for intermittent leave for the employee’s own serious health
        condition, the FMLA coordinator should be contacted regarding substitution requirements. Leave given as vacation or Salary Continuance, or other absences which qualifies as Family and Medical Leave under this section, will be counted as FMLA leave, as long as the absence is designated as Family and Medical Leave at the commencement of the leave or as soon as the Corporation is aware of the circumstances which qualify the leave as Family and Medical Leave."

        That is for all employees, I do not see anything specific for exempts.
        Last edited by RRPayroll; 02-01-2013, 11:27 AM. Reason: New info from HR


        • #5
          Originally posted by RRPayroll View Post
          If the Family and Medical leave is for intermittent leave for the employee’s own serious health
          condition, the FMLA coordinator should be contacted regarding substitution requirements.
          This is where their policy is vague and it is allowing the coordinator to make the decision. But it does look like they are following their vague policy for how they are deciding on intermittent leave pay.

          As to whether they HAVE to credit your extra hours worked that week before applying vacation, again my question would be what do they do for other employees who take time off within the same week that they work extra elsewhere? They have to treat FMLA timeoff and made up the same.


          • #6
            This is always an issue with undefined sick leave policies. Pre-FMLA, they were great. Post-FMLA, they are nothing but a headache. There comes a point where "unlimited" must end. The law cares far more about pay, and not so much which bucket that pay comes out of. Whether your employer calls it sick leave, vacation, PTO, personal time or some other name doesn't much matter. There is never a legal requirement to offset time worked one day for time taken off on another if you are an exempt employee. Some employers do, some do not. They should be consistent and even if the hours offset as far as pay is concerned, the time may still need to be counted toward the 12 week entitlement.

            Have you spoken to the actual FMLA Coordinator? Start there.
            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


            • #7

              They have not been docking employees who have missed equal time to me recently, but their argument is that I have been missing a larger number of days (i.e. I have only missed 2 days in total hours, but it has been spread over weeks because of a bunch of short appointments which they find more disruptive). While I disagree with that logic, the discretionary nature of the policy probably makes that valid.


              The coordinator is the HR rep I have been referencing. It has not been too helpful.

              Thanks for the insight guys. For better or for worse I think I have my answer.

              EDIT: I've always loved this site because everyone gives realistic advice on if something is actionable or not. So many other articles/sites seem to be filled by people with only a tenuous grasp on labor law or who seem amazingly litigious and think that every single thing an employer does is illegal.
              Last edited by RRPayroll; 02-04-2013, 07:35 AM.


              • #8
                You are welcome.

                It does seem that they are viewing the intermittent days as how many times you've taken even part of a day in their decision to move from paid sick to paid vacation, where you are wanting them to look at # hours in total. They are within their rights to do so, especially with the policy they have written.
                Last edited by hr for me; 02-04-2013, 08:19 AM.