salaried, non-exempt days off Washington

[jenniferu]

I have been "forced" to choose salary over hourly (told I would be sent home if not busy if I didn't choose salary). I recently had a funeral to attend (grandmothers) and when I got my check today, I was 8 hours short. My employer has NO office policy stating how these days are to be treated, I am on call 24/7, work through my lunch often (because of things that are scheduled that he needs my help with). We do get sick days, paid holidays, and 2 weeks vacation paid per year (not allowed to accru). Is this ok for him to dock my pay for that day, with NO policy stated?

Also he has stated that we cannot take 2 weeks off in a row for vacation, and that one of the weeks must be during "the slow season". Is this also ok for him to do??

[cbg]

Sorry, but there is no law requiring an employer to provide paid bereavement time. As a non-exempt employee, you do not have to be paid for any time you do not work (no matter how you are paid) and even an exempt employee could be docked pay for this since it is taking a full day off for personal reasons (one of the few reasons an exempt employee can lose pay). Nor does the law say there has to be a written policy. So while I don't necessarily agree with the way the employer handled it, it was legal.

The employer has the absolute right to determine when vacation can and cannot be taken. No law requires him to let you take off two weeks in a row, and no law says he cannot require vacation to be taken during the slow season.

[jenniferu]

Thanks. I kinda thought I was "screwed" on this one, but I thought I would check anyway.

[ArmyRetCW3]

I must clarify the response by CBG in that “As a non-exempt employee, you do not have to be paid for any time you do not work (no matter how you are paid)”. Assuming that you are an non-exempt employee paid on a salary basis you must be paid your full salary regardless of the numbers of hours worked “whether few or many”.

According to 29 C.F.R. § 778.114(a), a salary paid based on the fluctuating workweek method is intended to compensate an employee “for whatever hours he is called upon to work in a workweek, whether few or many.” In addition, subsection (c) requires that “the employer pays the salary even though the workweek is one in which a full schedule of hours is not worked.” It is the longstanding position of the Wage and Hour Division that an employer utilizing the fluctuating workweek method of payment may not make deductions from an employee’s salary for absences occasioned by the employee.

However, an employer may take a disciplinary deduction from an employee’s salary for willful absences or tardiness or for infractions of major work rules, provided that the deductions do not cut into the required minimum wage or overtime compensation. If the deductions are made frequently or consistently, then the practice of making such deductions would raise questions as to the validity of the compensation plan.


Please keep in mind this response is only applicable if you are correctly classified as non-exempt and paid on a salary basis.

[cbg]

And it does not apply to all salaried, non-exempt employees, no matter how much Army wants it to.

[ArmyRetCW3]

Sorry to disagreed, not only your response is incorrect, is wrong to give an impression that deductions from salary on a non-exempt eemployee legally CAN NOT be made. It is not how much I want it. It’s what’s enforced by US DOL-Wage Hour Div. If we are talking about salary non-exempt employee you CAN ONLY follow the provision set forth on 29 CFR 778 specifically § 778.114(a). There are several opinion letters that support my conclusion, including legal precedent. Just read thru just one of these opinion letters addressing this subject matter…
Although, opinion letters are specific the facts set forth on the letter, the principle of deduction from salary to non exempt employees remains unchanged...


http://dol.gov/esa/whd/opinion/FLSA/...12_15_FLSA.pdf

[cbg]

We've had this argument before, and I have gone directly to a DOL investigator, who agrees with me.

Not every non-exempt employee who is paid on a salaried basis is covered under 778.114. I agree that you are correct concerning the ones who are. But the ones who are not, STILL do not have to be paid when they do not work.

And it is wrong of you to give the impression that every salaried non-exempt employee, without exception, is covered under 778.114 when that is not the case.

Not every employee who identifies themself as "salaried" is being paid under the fluctuating workweek method. There are many, whom you refuse to acknowledge, who are paid on a salaried basis when they work 40 hours or less, but also receive (or should receive) overtime when they work over 40. In those cases, it is quite legal (I don't deny pointless, but legal) to deduct time when they don't work.

It would also be foolish for anyone to assume than everyone who is paid on salary is being paid correctly. And you are a fool if you believe that every non-exempt employee, without exception, who is being paid on any kind of salary is, by definition, being paid on the fluctuating workweek method.

[jenniferu]

Well looks as if I have opened a can of worms on this one! I do believe that I am non-exempt (would appreciate the definition again). I also do get overtime paid if over 45 hours a week. My employer considers a 45 hour week / 9 hr day reasonable, and not in need of overtime pay since we do have "down time during the winter months", meaning that there really isn't enough work to do but he pays us anyway. I think he sees this as a benefit, but somehow all of this feels like he is doing something shady, and manipulating the system, and me.

[Pattymd]

Yep, and I agree with cbg, FWIW.

[cbg]

We'd have to have an idea of your job duties to know if you're exempt or non-exempt.

While your employer needs to be paying you overtime after 40 hours, not 45 (and you can file a claim with your state DOL for the unpaid hours), if you are being paid overtime (at the rate of time and a half) at all you are clearly not being paid on the fluctuating workweek method. Therefore my original answer stands.

[ArmyRetCW3]

To JenniferU

The important thing to learn from this is not that “you opened a can of worm on this”. You have asked a question and have received several conflicting responses. The issue is not which one on this forum is correct. The issue is “If you complain to the appropriate agency, in this case federal agency, Wage Hour Division, what would the investigator apply in your situation?” That investigator, not responses from this forum would carry the weight of the law. As I pointed out with references, not just my word, I believed my response is the correct one. For you to take the appropriate action you may need a third opinion outside this forum, I would suggest to call the local Wage Hour office nearest to your location.