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  • Salary question for MA Employee Massachusetts

    I have a question for my father-in-law. He is wondering if as a "salaried" employee, a new boss can require that he use vacation or sick time for personal time that is being used to take his wife to doctor appointments. His wife had a heart attack and a stroke almost 2 years ago and constantly has to go to appointments. My father-in-law stated that this doesn't happen that often and when it does, it is usually 1-3 hours that he is gone from work.

    He does not make any effort to make up the time (as far as I know) and I am fairly confident that the only time off that he is allowed by his employer is for vacation and sick time.

    My father-in-law seems to think that this new requirement will only apply to him and that no one else within the company will be required to follow the same rules. He is thinking discrimination or an effort to get him to quit his job.

    I am not familiar with the Small Neccesities Act, but someone mentioned it. Does it apply here at all?

    Thank you in advance for any assistance provided.

    Dave in MA

  • #2
    Yes, an employer in all states (with the possible exception of CA - the jury is still out in that state) can required both exempt, non-exempt, and salaried non-exempt employees to use vacation and/or sick time to cover time missed in partial day increments, regardless of the reason.

    He is going to need more than a vague feeling that the employer may not apply this policy to anyone but him, before he has any kind of a discrimination claim.

    The Small Necessities Leave Act, if your father-in-law's employer is subject to it (not all employers are) and if your father-in-law is eligible for it (not all employees are) would not apply here unless his wife is over 60.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      cbg wrote: an employer in all states (with the possible exception of CA - the jury is still out in that state) can required both exempt, non-exempt, and salaried non-exempt employees to use vacation and/or sick time to cover time missed in partial day increments....

      FYI - Last year, the California Court of Appeal ruled that employers may require employees to use accrued vacation for partial-day absences without defeating the "salary basis" element of their overtime exemption. See Conley v. Pacific Gas & Electric Co., 2005 WL 1693801, 2005 DJDAR 8803 (1st Dist. Cal.App. 2005).
      Barry S. Phillips, CPA
      www.BarryPhillips.com

      IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

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      • #4
        I'm aware of Conley; I'm also aware that there are varying points of view on its legal application.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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