salary concern Tennessee

[SleepTech]

In January my wife was promoted to supervisor. At that time she was placed on salary based on an hourly rate of $25 or $1000 per week. We are aware that she will not receive overtime when she works over 40 hours.

She signs in and out like she did before becoming a salary employee. (We have no problem with this since the employer needs to know when its’ workers are there).

Neither of us has ever held a salary position so we do have a couple of questions.

She was told that she still has to work a minimum of 8.5 hours per day 5 days a week (42.5 hours) to get her 40 hours. HR told her that the mandatory 30 minute deduction for lunch still applies to her even though she is salary.

Question One: Is this true? Is this policy different from company to company?

My wife was diagnosed with invasive ductal carcinoma, ductal carcinoma in-situ and lobular carcinoma in-situ in April. She has had several physician appointments because of this. All of the physicians she sees are within 5 minutes of her office so she usually does not have to take off a full day or even half a day when she has an appointment.

There have been a few weeks where she has missed her 42.5 hour target and when she does they dock her pay for the time missed. For example; if she is in her office for 36 hours they dock her pay $162.50. If she is in her office 38 hours they dock her pay $112.50. They are so strict on this that if she is even one hour short due to a physician appointment or any other reason they dock her pay.

When she questioned this they told her that she would have to use vacation time or work later/come in earlier to make up the time missed. Otherwise her pay would be docked for anything under 42.5 hours even though she is salary.

Question Two: Is this legal? Is this the norm for salary employees?

Thanks in advance for any and all opinions.

[Pattymd]

There is a required meal break in Tennessee, so she can be required to take it. Actually, even if there weren't, the employer could require it.
http://www.state.tn.us/labor-wfd/lsques.html#laborlaws

If they are docking her salary for time missed, then they are treating her as a nonexempt employee and they have invalidated the exemption and owe her overtime. They can, though, substitute paid time off, such as vacation or sick pay, for such absences. There are very few exceptions to this. However, one of them is if her absences for her doctor's appointments would be FMLA-qualifying and it sounds like they would be IF the employer is big enough to be subject to the law and she meets the requirements for eligibility.
http://www.dol.gov/dol/allcfr/ESA/Ti...CFR541.118.htm

Does the employer have at least 50 employees are her job location or within 75 miles of her job location? And, if so, has she worked there at least 12 months and, within the past 12 months, has she worked at least 1,250 hours?

[SleepTech]

Thanks for the information. Her company has less than 50 employees. She has worked there longer than a year and worked over 1,250 hours in the past year.

We read the information provided by the link you posted. The way we interrupted the information is that as long as she does not miss a full day then she is entitled to her salary. If she misses a full day then her employer can make her use personal or vacation time. Is this correct? I have not mentioned sick time because their policy is that sick time is available after 3 days of absence.

Thank You.

[cbg]

She can be required to use sick, vacation or personal time for partial days, too, not just full days. The difference is that if she is OUT of time, she can be docked for full days but has to be paid for partial days.

[Pattymd]

Not quite right. If she misses a full day for personal reasons and is out of paid time off, her salary may be docked for that day. If she misses a partial day, her salary cannot be docked, even if she is out of PTO time; they may however, charge her with any PTO time she may still have. Does she get sick time and, if so, how much? Or is everything lumped together as Paid Time Off?

FMLA does not apply, as the employer does not have enough employees.

[SleepTech]

She has sick time but it can only be used if three or more days are missed in a row. It does go back to day one but can only be used when day three is missed. Sick time is lumped together with her vacation/personal time.

We are still a little confused on the partial day matter.

If we understand the replies correctly the following is true. Even though she is a salary employee her employer can require and/or force her to use PTO if she misses a few hours during the week to go to her physician appointments or any other reason even though she always goes back to work? (This is what they have been doing). If this is the case what is the benefit of being “salary” when she does not get overtime when she works over 40 hours? (This happened frequently prior to her breast cancer diagnosis).

My wife and I thank you both for taking the time to answer our questions. We are glad we came across this forum.

[Pattymd]

her employer can require and/or force her to use PTO if she misses a few hours during the week to go to her physician appointments or any other reason even though she always goes back to work?

That's correct.

And the advantage to the employee is that, with very few exceptions, as previously stated, even if the employee is out of PTO time, she/he must be paid her full day's wages when only a partial day is worked.

[SleepTech]

Thank you very much for your help. You have answered all of our questions.