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nonprofit exempt forced to take leave - Pennsylvania

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  • nonprofit exempt forced to take leave - Pennsylvania

    I am an exempt employee for a Pennsylvania non-profit corporation. Due to contract mistakes by my superiors, the project I am working on is unable to work for a period of time (allegedly only a week or two, but that seems to be pushed back daily). Since I am exempt employee, I assumed that I must receive my biweekly paycheck regardless of whether or not I do work, since I am willing to perform any task that they ask of me (I told my boss point-blank that I would scrub toilets as long as I get my paycheck). However, my employer has forced me to take vacation for every day that I have been without a project to charge my timesheet information to (right now it is up to 8 days, more than I accrue in 6 months).

    They have also told me that they will not consider laying me off (so I can collect unemployment and get my severance package) until at least 30 business days have passed that I am not paid. Is this legal? My assumption that they must pay me is based on FLSA 29 C.F.R. Part 541 (602b) that I found via google stating that "if an employee is ready, willing and able to work, deductions may not be made for time when work is not available." This becomes a serious problem for me in about 4 days as that is when I will be 40 hours negative in my leave balance (the most they will let me go negative) and they will want me to take leave without pay. I want them to either pay me or lay me off, is this a fight I can win?

    Sorry this is so long!

  • #2
    The general provision for an exempt worker is that the worker must be paid the pre-defined salary for any week in which work is performed. There are exceptions for intermittant FMLA. Also the employer may take a deduction during the initial/terminal weeks of employment for time not worked.

    For time missed, the employer may require use of your vacation and other available leave balances. This would not negate your exempt status. I am aware that many companies do this when they close shop for the week between Christmas and New Years. I understand this is not the case for you; but it's a close comparison of similar circumstances.

    Has the employer instructed what happens when vacation is exhausted? Will they treat as "no pay" or continue to pay as if you were working?


    • #3
      I was told that when my leave balance is out, I will be forced to take leave without pay. At that point, I want them to lay me off, but they refuse to do so.

      I knew that they could force me to take my available leave balance. I was told that once it was exhausted, I could "go negative" on my leave (up to 40 hours), but if I decide to leave in the next 4 months, I will have to pay those hours back (which seems exactly the same as forcing me to take leave without pay because it forces me to stay with the company or I will not be paid for those days).



      • #4
        In Pennsylvania, it lawful to take back vacation that hasn't been accrued but paid out at separation. In my opinion, this is one reason why employers shouldn't offer the option to go negative.


        • #5
          Thank you for your reply above.

          I should be more specific in my response. I had about 3.5 days of leave accrued. That has been exhausted. I am now taking borrowed leave which I must pay back if I leave before I accrue enough leave to be at a zero (or positive) balance. I assumed that they could make me take my already accrued leave. However, since I must pay back any borrowed leave taken, I do not see how they could force me to do that (since if I decide to leave, they will simply take some pay out of my last paycheck to make up the difference). In addition, there is a cap of 40 hours that they will allow you to go negative. That will be exhausted early next week for me. At that point, I was told that I must take leave without pay.


          • #6
            Company policy would prevail on the vacation issue since it's not specifically addressed under Pennsylvania or Federal law.

            cbg: Is it your understanding that the exempt status would not be affected when there is a lack of work by offering the worker "no pay"?



            (6) The effect of making a deduction which is not permitted under
            these interpretations will depend upon the facts in the particular case.
            Where deductions are generally made when there is no work available, it
            indicates that there was no intention to pay the employee on a salary
            basis. In such a case the exemption would not be applicable to him
            during the entire period when such deductions were being made. On the
            other hand, where a deduction not permitted by these interpretations is
            inadvertent, or is made for reasons other than lack of work, the
            exemption will not be considered to have been lost if the employer
            reimburses the employee for such deductions and promises to comply in
            the future.



            • #7
              If you are "ready, able and willing" to work, as an exempt employee, you must be paid. Only if you take off for personal reasons (with no PTO time available), for illness or injury (with no available time in a sick pay plan) or for intermittent FMLA may you pay be docked.

              An employee is not paid on a salary basis
              if deductions from the employee's predetermined compensation are made
              for absences occasioned by the employer or by the operating
              requirements of the business. If the employee is ready, willing and
              able to work, deductions may not be made for time when work is not

              Having said that, though, what they are doing so far is legal, though I agree it, to be blunt, stinks. Especially the part about having to borrow from your PTO (and pay it back when you leave, if still in the negative) when by law, you have to be paid anyway. When you get to the 40 negative hours of PTO and your pay is docked, you can hit the state Dept. of Labor, once the first full paycheck does not occur.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


              • #8
                Thank you robb71 and pattymd! I'm amazed by the prompt responses here!

                I was hoping the news would be a little better, but now that I know my rights on this one, I feel a little better about my pending short paycheck (which is coming in the next 2 weeks). I'll follow your advice and wait until there is a paycheck of less than my predetermined salary and call up PA labor & industry.

                One thought... what would prevent an employer from simply saying "you can go negative for an indefinite amount of time" and then simply not give you work, letting you go negative for months or so? Those poor souls who believe them that work is just around the corner could be stuck paying back months and months of pay, and if they do get work, they may be stuck working for that employer for years just to get back to zero for leave. It may be the steel mill worker's kid in me saying this, but it seems kind of like taking your paycheck to the company store.

                Thanks again, I really do appreciate your responses!


                • #9
                  Legally, nothing, at least in most states. And that's why it stinks.
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


                  • #10
                    That's what I figured

                    One more quick question. I am required to fill out a timesheet every week. I am supposed to have 40 hours billed on the timesheet, but since I don't have anything else to bill, I must bill my paid time off balance. Once that is exhausted, I was told that I would have to place my time in the "Leave Without Pay" (LWOP) column. I figure that their plan is that if I charge LWOP, then I am voluntarily taking LWOP, if I don't charge anything, then I violated the rule of "thou shall have 40 hours in thy timesheet" and they fire me with cause (i.e. no unemployment compensation). Any thoughts on what I can do to avoid this (even if it is "call a lawyer and pay for your advice, you freeloader" )? My only thought is that I can place comments on my timesheet and I would put a comment along the lines of "this was forced on me, billing LWOP is not to be taken as taking LWOP for personal reasons"


                    • #11
                      Please keep in mind (Robb71) that part 541.118 is no longer applicable, effective Aug 24, 2006. In the new and updated 541 there is no 541.118. Part 541-602 is only applicable IF there is a written policy by the employer. IF there is not a written policy the exemption my be denied by Wage Hour if an investigation is initiated on this employer. Many employer just have a policy as they go and do business, that probably is not going to cut it with Wage Hour when the times comes to responde on why the dedcution were made with out a written policy.
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                      Last edited by ArmyRetCW3; 11-20-2006, 08:34 AM.

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