Salaried exempt employee and leave Washington

[graewerldsgirl]

Here's the situation. My husband works for a private business who has deemed him as exempt. I'm not sure I agree with their determination since he's not an executive, in administration, a computer techie, works in sales, or qualifies as a professional as described in WHD's Fact sheet #17A. On his last paycheck we noticed that he was docked, from his leave bank, 1 & 1/2 days because the owners closed the business due to an overwhelming amount of snow for our area. If they are correct in his exemption status, under WHD's Fact Sheet #17G, an exempt employee must receive a full week's salary regardless of the number of days or hours worked.

WAC 296-128-532 outlines the improper deductions from salary which says partial days are not permitted...unless it's for a reason permitted by WAC 296-128-533 and that partial days can't be docked from a leave bank unless it is by expressed request by the employee.

WAC 296-128-532 also states that deductions are not permitted for lack of work. Closing the business for snow kind of prohibits customers from coming in, thus no work and how can an employer require an exempt employee to take leave when they chose to close the business for a day? A week, I can understand and the law allows that.

And, there is nothing that we're aware of in an employee's handbook because, although we've asked for a copy, we have never been given one because it's being "rewritten"......for the past 8 years.

Now for my questions..

Am I correct in my interpretations of the law?
Can a private business dock leave with no expressed request by the employee for either partial or full days?
If we believe that the exemption determination is incorrect, what are our next steps? Worker's Right's Complaint and possible litigation for back overtime?

[cbg]

Am I correct in my interpretations of the law? No, at least not so far as the application of leave is concerned. We don't have enough information to establish if you are correct about the exempt determination.

Can a private business dock leave with no expressed request by the employee for either partial or full days? Yes. That is legal in all 50 states, with only minor limits in the state of California ONLY. It is legal for both exempt and non-exempt employees. The Federal DOL has made it quite clear that nothing that happens to leave balances is of any concern to them, and as long as the exempt employee received all the dollars in their paycheck that they are due, the Feds don't care a hang whether some or all of it was deducted from a leave bank.

If we believe that the exemption determination is incorrect, what are our next steps? Worker's Right's Complaint and possible litigation for back overtime? Your husband, NOT YOU, is free to ask the DOL for a determination of his exempt status. It will not change anything with regards to the application of vacation time for snow days.

[graewerldsgirl]

Thanks for the quick response.

So if I'm understanding you correctly, as long as the company pays him his full salary, thereby not eroding the salary basis, they can pretty much do whatever they want with the leave bank. In other words, use the leave hours to make up for the "day off" that they initiated.

And on the partial day deductions from leave, I thought these could only be done at the exempt employees request and only under certain circumstances, like FMLA. If it's not expressly written in the mysterious employee's handbook can the company do this legally?

And, yes, HE would be the one to request a review of his exempt status.

[cbg]

So if I'm understanding you correctly, as long as the company pays him his full salary, thereby not eroding the salary basis, they can pretty much do whatever they want with the leave bank. In other words, use the leave hours to make up for the "day off" that they initiated.

That is correct.

And on the partial day deductions from leave, I thought these could only be done at the exempt employees request and only under certain circumstances, like FMLA.

To be blunt, then you thought wrong. There is no such limitation. Deductions from PAY - meaning, he receives fewer dollars in his paycheck - on a partial day basis can only be done under certain circumstances (though there does not have to be an employee request). Deductions from a leave bank, which makes up the balance of pay, can LEGALLY be deducted in full or partial day increments with or without the employee's consent. For BOTH exempt and non-exempt employees.

If it's not expressly written in the mysterious employee's handbook can the company do this legally?

Yes. They can. There is NO legal requirement that there be a written policy to this effect before it can be done. It can be done whether or not there even IS a handbook, let alone that this be spelled out in it.

[graewerldsgirl]

So when I'm reading the Washington State law WAC 296-128-532 Deductions for salaried, exempt employees that covers both deductions from pay and from leave balances, where it says "Deductions may be made from bona fide leave banks in partial or full day increments. However, partial day deductions may be made only on the express request of the employee for time off from work. Leave bank deductions may not be for less than one hour" I'm interpreting it wrong?

[Pattymd]

That's new to us, and you may be correct. Since that law as interpreted, however, is more than federal law provides for, you might want to contact the state DOL (or whatever they call it in Washington) to confirm.