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Exempt employee out on partial leave Rhode Island

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  • Exempt employee out on partial leave Rhode Island

    Hi,

    I was recently in a car accident (non-work related) and my Dr. has given me a note to work a maximum or two 8-hr days per week for the next 2 weeks, then to be re-evaluated.

    My boss feels that she needs to hire someone to come work the 3 days I'm out and that she feels it's unfair to pay both me and the person she needs to hire to do my job.

    As I'm a salaried (40-hr) exempt employee, does she have to pay me the entire work week or can she legally pay only the days worked? We are allowed 3 sick days, all of which have already been exhausted earlier this year. I have had to give up my last 3 vacation days to cover the days I've been out so far.

    She wants me to file for TDI, but according to TDI law, I have to have been out for 7 consecutive days, which I have not. She also mentioned that she could lay me off so I could collect unemployment during the time I was out, but I don't think I'm eligible as my understanding is that I have to be able to work while on unemployment. And my Dr's note states I can't work full-time.

    I really feel like I'm caught in a rock and a hard place and just want to know what my rights are, if I have any recourse at all.

    Any help would be appreciated.

  • #2
    Do you know if you are under the FMLA?

    http://www.dol.gov/dol/allcfr/ESA/Ti...CFR541.602.htm

    (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.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      From my understanding of the FMLA law, the employer must have 50 or more employees. The agency I work for has less than 50 employees (24 total). I'm not really sure if that helps me or hurts me??

      Comment


      • #4
        The FMLA protects your job and allows the employer to dock your salary for partial day absences. But from I way I read your posts, you are working full days, just not a full workweek.

        What type of sick leave/PTO does the employer provide?
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          We get 3 sick days, 2 personal and 10 vacation days. At this point, all I have left are 3 vacation days. We are not eligible to use our holidays for anything other than holidays.

          And you are correct. I am working 2 full 8-hr days (8-hrs is a full work day for me). I spread it out so that I work my 2 busiest days so that my employer would not have to hire someone to fill in for me. But she doesn't see it that way as she does not want to pay me for the entire week.

          I'm just not sure what my options are at this point. I simply cannot afford to live off of two days work even for 2 weeks. I'm not sure of TDI (STD in RI) is my only option. I'm sure my Dr. would prescribe me out for 7 consecutive days, but I thought that I was due my full salary if I worked even 1 day out of the week. I thought that was one of the perks of being salaried, exempt. The overtime I put in doesn't get paid for, but any time I need out due to situations such as this should be protected... or at least that was my understanding. It may seem as though I misunderstood at this point however.

          I am not trying to weasle money out of the company or be unethical in any way. I didn't want to be in a car accident, nor do I want to be out of work. I know the mess I'm going to have to clean up when I get back and if I could work to my full capacity, I would gladly do it. But I do feel that I'm being ripped off by my boss because she simply does not want to pay for my being out.

          If I have any options available to me, I would greatly appreciate any info. Like I mentioned, the company has less than 50 employees, I do not have sick time left and the 3 vacation days I do have will need to be used this week to cover my time out. Do I have any rights??

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          • #6
            Can the personal days be used for sickness or injury? Honest, there is a reason I'm asking.
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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            • #7
              I do not have any more sick or personal days left. I only have 3 vacation days, 2 of which had to be used for the day of the accident (I was on my way into work so I was unable to get to work that day) and 1 of which will have to be used for this week.

              Hope that answers your question. To my knowledge, I am allowed to use the sick and personal days to cover, but with none left, I don't see that being an option.

              Comment


              • #8
                No, I didn't ask what you had left. I asked if the personal days that you are given can be used for illness, but it sounds like they can, is that correct?

                If the employee gets at least a reasonable amount of sick days per year (a minimum of 5 days generally meets the "reasonable" definition), then an exempt employee's salary can legally be docked for full day absences due to illness or injury once the entitlement is exhausted. However, I am not at all certain that, in this case, the personal days would be added to the sick days to meet the "reasonable" definition. You might want to call the federal Dept. of Labor to inquire, since this is a federal regulation.
                http://www.dol.gov/dol/allcfr/ESA/Ti...CFR541.602.htm specifically, paragraph (b)(2)
                Last edited by Pattymd; 10-21-2008, 10:56 AM.
                I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                • #9
                  First, understand that PattyMD does a tremendous job on this forum, and posts more helpful information on this site in a day than most of us do in an entire year. My guess is that at 4am this morning when PattyMD typed "The FMLA protects your job and allows the employer to dock your salary for partial day absences," she meant that if the FMLA applied to your job, it would protect your job by requiring that you be returned to your position after FMLA-qualified leave, but the FMLA does not in any way prohibit docking your salary for partial day absences because FMLA leave need not be paid leave. Also, if your leave is FMLA-qualified, your employer can dock your pay for a partial day absence occasioned by FMLA leave as follows without failing the "salary basis" test required for you to be exempt from the overtime laws under the FLSA:

                  29 CFR Sec. 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.

                  If your leave is not FMLA-qualified, however, docking your salary for partial day absences (as opposed to whole-day absences) after you have exhausted all available paid leave, however, might cause the employer to fail the "salary basis" test and forfeit your exempt status thereby making you eligible for overtime compensation under the FLSA, which is a whole different question.

                  For the FMLA to apply in the first place (i.e. for the FMLA to possibly protect your job and for your leave to be FMLA-qualified), (i) you must have worked a full year for your employer, (ii) you must have worked at least 1250 hours for your employer within the preceding year, and (iii) your employer must employ 50 or more employees within a 75 mile radius of where you work. You said that the agency you work for only has 24 total employees. Thus, it would appear that the FMLA does not protect you because you are not covered under that Act. Note that there might be some state law protections, you would need to look into that.

                  According to the DOL and the District Court of Masschusett's Caperci decision, if your partial-day absence is not for FMLA-qualified leave, an employer can dock your available paid leave balance for partial day absences without failing the "salary basis" test and forfeiting your exempt status, but cannot as a matter of practice dock your pay for partial day absences once your paid leave is exhausted without thereby failing the "salary basis" test and converting your overtime status from exempt to non-exempt. Again, this only applies to partial day absences, not full day absences.

                  Hope this is helpful.
                  Last edited by C.A.H.; 10-21-2008, 02:16 PM. Reason: correction as to deduction for FMLA-qualified partial-day absences
                  C. Andrew Head, Attorney, Crowley Clarida & Head LLP http://overtimeattorneygeorgia.com/. Licensed to practice in Georgia. The foregoing does not constitute legal advice and should not be construed as establishing or attempting to establish any attorney-client relationship.

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                  • #10
                    Hi PattyMD,

                    Thanks for responding again. I misunderstood your question. A personal day can be used for anything. We aren't required to say what we need a personal day for and if we run out of sick days and want to use a personal day if we get sick, we are allowed to.

                    I have a call into the US DOL and I will ask that question. Thank you very much.


                    Hi C.A.H.,

                    I hope no one thought my responses were rude or meant to attack anyone in any way. I'm so grateful for those who have posted and given their knowledge freely. Perhaps I read too much into your post, but I got the feeling that you may have thought that.

                    Thank you also for responding. I'm not quite sure I understand what you wrote though. I am really green in this area and need it broken down in language I can understand. I know at this point I'm not eligible for FMLA, so I'm hoping there is other recourse.

                    I can't really afford to go on TDI (temporary disability insurance) right now, but it looks like I might not have a choice because I can't afford even more to be paid only 2 days a week. It doesn't look like I have very many options open so I guess I'll just have to see what happens from here.

                    Thank you all again for your help.

                    Comment


                    • #11
                      CAH, that's exactly what I meant. I try. I'm a bona fide insomniac. *sigh*

                      OP, there is no other legal recourse (because FMLA does not apply), other than what the DOL might say regarding whether the 3 days sick PLUS the 2 days personal equates to a bona fide sick pay plan. If it does, since you have exhausted that, your salary can be docked for full day absences. If it does NOT, then it cannot be. Since the personal days can be used for any reason, I'm guessing their answer will be that it does not, but again, that's just an educated guess. That's the regulation I linked you to in my earlier response.
                      Last edited by Pattymd; 10-22-2008, 05:01 AM.
                      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                      Comment


                      • #12
                        Ok. Thanks for your help in cutting through the "legaleze" on all this. I actually just got off the phone with someone for the US DOL and he mentioned that since we use temp agents (which would bring us up over the 50 employee mark) that FMLA might qualify here. He said he was on the road and would have to look that up and get back to me tomorrow.

                        At this point I've done all the research I can and I have to just let God handle things for me.

                        Thanks again for your insights and helps in this matter.

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