“salaried” vs. "actual practice"

[jezziebelle]

What is the name of your state? MO

Questions about FLSA exemption for “salaried” employees. Two co-workers and I are “salaried” employees. We do not punch a clock or fill out time sheets. We are paid the same amount biweekly and it is more than $455.00 per week. The exemption would be claimed as a “professional” exemption and we all hold professional licensures. My concern is that I believe the employer has established an “actual practice” that would in fact mean we are hourly employees rather than “salaried”. If any day is less than 8 hours, we will be asked to “make up the time” to a 40 hour week in the same week or be required to use paid time-off hours. If we do not have PTO hours available, then we will not be paid for the missing time. At the same time, we are not paid at all for any hours over 40 in a week. My understanding from that is that he shouldn't make deductions for partial days worked and then not pay overtime for hours over 40. I believe that the owner is dipping into two different wells depending on which costs him the least. Also, if told the office is closed by the owner on a regular work day, should the owner then refuse to pay a “salaried” employee on the basis of “no work, no pay”? I think the owner is out of line and I am looking for clarification of “salaried”. I have visited the DOL website, but am not 100% sure that the requirement to work 40 hours, use PTO to complete a 40 hour week, or not be paid does in fact establish an “actual practice” that we are not true “salaried” employees.

Secondly, one of the “salaried” co-workers was called at home by the owner to assist on the weekend (regular work week is business hours) with another department. We were attacked by a computer virus and she is a hobby computer geek. The office I.T. department head (also “salaried”) refused to work the weekend and the owner asked my coworker to assist with computer cleanup. This is completely outside her regular job description—two different worlds even. When he called her at home on Friday evening, he told her she could “name her price”, but they did not hammer out details. Now he claims the 20+ hours she spent during her weekend off is not payable because she is “salaried”. Does working outside her regular job description have any bearing on whether she is owed for the time, even IF classified correctly as “salaried”?

I’m a principled person and not afraid of going head-to-head with the owner or of losing a job in retaliation. I just don’t want to poke a stick at that rattlesnake unless I know I’m right in fact and not just morally or ethically.

I apologize for the length and appreciate any feedback. jezziebelle

 

[pattytx]

If any day is less than 8 hours, we will be asked to “make up the time” to a 40 hour week in the same week or be required to use paid time-off hours.

This is legal for exempt (and nonexempt, for that matter), employees; i.e., it's not prohibited.

we are not paid at all for any hours over 40 in a week. My understanding from that is that he shouldn't make deductions for partial days worked and then not pay overtime for hours over 40.

With limited exceptions, that is correct. The exceptions are for intermittent FMLA and for certain exempt employees who CAN be paid on an hourly basis and not invalidate the exemption.

we all hold professional licensures.

Licenses in what? For example, licensed physicians and attorneys engaged in the practice of their profession(s) are examples of exceptions to the "salary basis" for exempt employees referenced above.

Regarding your co-worker, if she is, in fact, exempt, she does not need to be paid for her additional time, even if she is not doing her regular job.

 

[ecmst12]

If the classification as Exempt is correct, then you do not have to be paid for any days in which you do not work at all. You should NOT have your pay docked for hours worked less then 40 in a week though, unless it was an entire day. They CAN deduct from your PTO or ask you to make up the hours. If you don't make up the hours or have PTO to cover the time, even though they're not supposed to dock your pay, it IS legal for them to take other disciplinary action including termination, though.

We have no idea if the classification as exempt is correct though.

 

[cbg]

The above poster has it backwards. NON-Exempt employee do not have to be paid when they do not work. Exempt employees have to be paid their entire salary for any week in which they do any work at all, with limited exceptions.

 

[ecmst12]

Oh I thought that exempt employees did not have to be paid if they didn't do any work for an entire DAY, not by the week. Sorry to confuse things....must have misunderstood something somewhere.

 

[jezziebelle]

Thanks everyone! I was angry when I made my first post and realize now that I was not really clear at all. Your answers so far help a good deal but I have questions still and will try to be more concise. Pattytx: the licensures I speak of are RN licensures. I posted much of the info to support my opinion that the professional exempt status IS (or at least at one time was) correct and that the employer is claiming to pay us as salaried employees. However, due to "actual practice", I question that perhaps the employer may be establishing my department as hourly employees vs. salaried. That is the crux of my ultimate questions. I understand that if the exemption is / remains accurate, we are not entitled to overtime and that failure to meet work requirements can result in other disciplinary action. My 'tunnel vision' focuses on the practice and definition of "salary" and improper reductions of salary. I also understand the employer can reduce PTO bank hours without making a "salary" reduction.
1) Do I understand that a pattern or "actual practice" of improper salary reductions can result in the employer's loss of the exemption? If so, does that mean those affected could retroactively claim reimbursement for improper reductions?
2) Can anyone shed light on the type / severity / frequency of the improper reductions that would result in the loss of the exemption if #1 is correct?
3) How does the employer's policy for use of PTO hours affect the propriety of salary reductions? IE we are allowed to use only 4 hour increments of PTO. So, if I work 37 hours and cannot use PTO to complete 40, nor do I make up the time, is it proper or improper for the employer to reduce actual salary?
4) If #3 is improper, does / would / could that pattern establish an "actual practice" resulting in the loss of the exempt status?
5) CBG, I have read what you posted in the DOL fact sheets and just cannot make sense of it. It seems from reading DOL that what ecmst12 stated was correct about full day reductions. But, I then can't reconcile that with reading on DOL what you also posted. Can you help me make sense of that? In what situations can salary be reduced for personal full day absences if I have worked during the week and the employer is required to pay full salary? That is creating a serious dichotomy in my brain!

My employer has the integrity of a blood-sucking tick. I don't for the most part confuse what he can do vs. what he should do. (Such as live up to his offer of paying a nurse to debug his computers on her weekend off rather than retro claim she is salaried.) But, I want to get the rules straight to prevent being taken advantage of further at least until I can find another employer with some integrity. THANKS ALL! Jezziebelle

 

[cbg]

ecmst12; there are a few limited exceptions in which an exempt employee can be docked for a full day. But for the most part, if they work any part of the week, they must be paid for the whole week. PM me if you want the list of exceptions.

Sorry about the thread hijack.

 

[cbg]

I missed the OP's request for the exceptions in the first read-through so here they are.

An exempt employee must be paid their entire salary for any week in which they do any work at all unless:

1.) It is the first or last week of employment and they did not work the entire week
2.) They miss time due to FMLA
3.) The employer offers a reasonable (undefined but generally considered by most courts to be five or more) of paid sick days; the exempt employee calls in sick when they either are not yet eligible for these days or have used all to which they have been entitled
4.) The employee chooses to take a full day off for personal reasons
5.) The employee is suspended for the violation of a major safety violation
6.) The employee is suspended for the violation of a written company policy which applies to all employees and which relates to workplace conduct (sexual harassment, drugs/alcohol in the workplace, workplace violence, etc.)

What may be confusing to you is that it is ALSO true, that except in the case of #2 above, an employee who works any part of the day must be paid for the entire day. They can be required to use sick, vacation or personal time to cover the absence (with limited exceptions in California ONLY) but with the sole exception of partial day absences attributable to FMLA, they must be paid for the full day if they work any part of the day.

BTW, for the professional exemption and the computer exemption, if certain criteria are met it IS possible for an exempt employee to be paid hourly without violating the exemption.

Did that help, or make it worse?

 

[pattytx]

Customarily Acquired by a Prolonged Course of Specialized Intellectual Instruction

The learned professional exemption is restricted to professions where specialized academic training is a standard prerequisite for entrance into the profession. The best evidence of meeting this requirement is having the appropriate academic degree. However, the word “customarily” means the exemption may be available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction. This exemption does not apply to occupations in which most employees acquire their skill by experience rather than by advanced specialized intellectual instruction.

http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17d_professional.htm

Meets the criteria for the Professional exemption. However, I would not deem an RN to be in the "practice of medicine" as I believe the DOL would define it. Therefore, exempt, probably, yes. Can be paid hourly, no.