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Exempt employee on work compensation with modyfied duty.
- Thread starter xa-xa
- Start date
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- Status
Are you certain of that? - Yes.
How long have you worked for this employer? -14years
How many employees does your employer have within 75 miles of your location?- 15.000
In the 12 months immediately preceding the start of your leave, did you work a minimum of 1,250 hours? - Yes.
Thank you.
How long have you worked for this employer? -14years
How many employees does your employer have within 75 miles of your location?- 15.000
In the 12 months immediately preceding the start of your leave, did you work a minimum of 1,250 hours? - Yes.
Thank you.
cbg
I'm a Northern Girl
Agree with ecmst12. You are almost certainly on FMLA for those two hours, whether you know it or not, and if you're not, then your employer is almost certainly violating the law because you should be.
It is expressly stated in the statute that time on FMLA does not need to be paid, even for exempt employees.
It is expressly stated in the statute that time on FMLA does not need to be paid, even for exempt employees.
It is a confusing. As far as I know an exempt employee can work a 1 hour, but has to be payed for 8hours for the work this day. If employee on a work compensation and works 6 hours a day why employer not obligated to pay for 8 hours. Or I am missing something.
Please clarify.
Regards.
Please clarify.
Regards.
cbg
I'm a Northern Girl
You are missing the fact that there are several exceptions to that rule, and one of those exceptions is when an employee is using FMLA for partial days.
And if given what you have told us, if you have what would be considered a serious health condition under the FMLA statute, your employer is in violation of the law if they are NOT applying those two hours a day to FMLA.
Which means that you are falling into one of the exceptions when you do NOT need to be paid for a full day if you only work a partial day.
And if given what you have told us, if you have what would be considered a serious health condition under the FMLA statute, your employer is in violation of the law if they are NOT applying those two hours a day to FMLA.
Which means that you are falling into one of the exceptions when you do NOT need to be paid for a full day if you only work a partial day.
Typically, when a person is injured at work, and is returned to modified duty working less than their "usual and customary" hours, they can qualify for Temporary Partial Disability (to be paid by the Work Comp insurer/TPA).
The claims adjuster should have gotten your wages for 4 pay period prior to the date of injury (4 pay periods is just an example, some jurisdictions have a different time span). Then they average out those numbers to come up with your AWW (average weekly wage). If you are working only 6 hours/day, and your earnings are less than your AWW, then you could be eligible to receive the difference between the AWW and your actual earnings.
For Example: AWW = $800. You return to work at 6 hr/day, and your paycheck for one week is $600. The claims examiner would subtract $600 from $800, to come up with $200. Thus Work Comp would pay you $200.
Of course, most states have a maximum cap as to the amount that can be paid. And some states have a max amt. of weeks that you can receive temporary partial and/or temporary total disability.
Your employer would not be paying you for the difference. It would the responsibility of the insurance company or third-party administrator.
Exempt employee on work compensation with modyfied duty
I found CA opinion letter from DLSE:
On November 25, 2009, the Department of Labor Standards and Enforcement (DLSE) issued an Opinion Letter clarifying how and when a California employer may deduct for a full and partial day absence from an exempt salaried employee’s accrued paid time off (vacation and sick leave bank). Pursuant to California law, an exempt employee must receive his or her full salary for any week in which the employee performs any work without regard to the number of days, or hours worked. See, DLSE Manual § 51.6.8-51.6.9 and 29 CFR §541.602(a). Thus, under California law, it is illegal to dock the pay of an exempt employee for a partial day absence. However, under both federal and California law, the employer is permitted to dock the pay of an exempt salaried employee when the employee is absent from work for one or more full days for personal reasons other than sickness, or disability (29 CFR § 541.602(b)(1); DLSE Manual §51.6,14,3.) and for absences of one or more full days caused by sickness, or disability (including work-related accidents), if the deduction is made from a bona fide plan, practice, or policy of providing compensation for such sickness or disability (29 CFR § 541.602(b)(2); DLSE Manual § 51.6.15.2.)
I understand from this letter that under California law, it is illegal to dock the pay of an exempt employee for a partial day absence.
Thank you.
I found CA opinion letter from DLSE:
On November 25, 2009, the Department of Labor Standards and Enforcement (DLSE) issued an Opinion Letter clarifying how and when a California employer may deduct for a full and partial day absence from an exempt salaried employee’s accrued paid time off (vacation and sick leave bank). Pursuant to California law, an exempt employee must receive his or her full salary for any week in which the employee performs any work without regard to the number of days, or hours worked. See, DLSE Manual § 51.6.8-51.6.9 and 29 CFR §541.602(a). Thus, under California law, it is illegal to dock the pay of an exempt employee for a partial day absence. However, under both federal and California law, the employer is permitted to dock the pay of an exempt salaried employee when the employee is absent from work for one or more full days for personal reasons other than sickness, or disability (29 CFR § 541.602(b)(1); DLSE Manual §51.6,14,3.) and for absences of one or more full days caused by sickness, or disability (including work-related accidents), if the deduction is made from a bona fide plan, practice, or policy of providing compensation for such sickness or disability (29 CFR § 541.602(b)(2); DLSE Manual § 51.6.15.2.)
I understand from this letter that under California law, it is illegal to dock the pay of an exempt employee for a partial day absence.
Thank you.
cbg
I'm a Northern Girl
And if you'd read the entire opinion letter, instead of just the part that you like, you'd see that IN THAT SAME OPINION LETTER there is an exception for time when an employee is on FMLA. Even in CA. Even when the employee is exempt.
You don't get to only read the parts you like. The parts you don't like apply too.
You don't get to only read the parts you like. The parts you don't like apply too.
cbg
I'm a Northern Girl
The following appears in the same opinion letter you reference:
A different rule applies for treatment of absences due to unpaid leave under the federal Family Medical Leave Act (FMLA) and its effect on the salary basis test for exempt employees. “An employer is not required to pay full salary for weeks in which an exempt employee takes unpaid leave under the federal Family Medical Leave Act. Rather, when an exempt employee takes unpaid leave under the Family Medical Leave Act, an employer may pay a proportionate part of the full salary for time actually worked.” (29 CFR § 602(b)(7).) The DLSE recognizes that “adjustments in compensation and/or benefits are permissible where other statutory requirements are met, such as the family and medical rules that provide eligible employees with flexibility they need to take leaves on a “reduced leave” or “intermittent leave basis.” (DLSE Opinion Letter 2002.03.01, p. 7.) The DLSE views both the FMLA and California Family Rights Act (CFRA) as enactments covered in 29 CFR § 602(b)(7).
(Emphasis mine)
A different rule applies for treatment of absences due to unpaid leave under the federal Family Medical Leave Act (FMLA) and its effect on the salary basis test for exempt employees. “An employer is not required to pay full salary for weeks in which an exempt employee takes unpaid leave under the federal Family Medical Leave Act. Rather, when an exempt employee takes unpaid leave under the Family Medical Leave Act, an employer may pay a proportionate part of the full salary for time actually worked.” (29 CFR § 602(b)(7).) The DLSE recognizes that “adjustments in compensation and/or benefits are permissible where other statutory requirements are met, such as the family and medical rules that provide eligible employees with flexibility they need to take leaves on a “reduced leave” or “intermittent leave basis.” (DLSE Opinion Letter 2002.03.01, p. 7.) The DLSE views both the FMLA and California Family Rights Act (CFRA) as enactments covered in 29 CFR § 602(b)(7).
(Emphasis mine)
Here is a full page from this letter: and your comments applied only to *1(as a clarification to first paragraph only) and not to the full text of the letter.
The prohibition against deductions from an employee’s wages under the salary requirement is subject to several exceptions stated in 29 CFR § 541.602(b). The exceptions include and allow for deductions from pay when an exempt employee is absent from work for one or more full days for personal reasons other than sickness or disability (29 CFR § 541.602(b)(1); DLSE Manual § 51.6.14.3.) and for absences of one or more full days occasioned by sickness or disability (including work-related accidents) if the deduction is made from a bona fide plan, practice, or policy of providing compensation for such sickness or disability (29 CFR § 541.602(b)(2); DLSE Manual § 51.6.15.2.) The clear language in these referenced federal regulations allows for deductions from a salary only in increments of one full day. *1.
A corollary to the above recognized by the courts and the federal Department of Labor (DOL) is that an exempt employee’s salary cannot be subject to reduction for absences less than a full day under the above stated federally recognized exceptions. (See Abshire v. County of Kern, 908 F.2d 483, cert denied, 498 U.S. 1068 (1991) [deducting an employee’s salary for absences less than one day violates FLSA salary basis test]; Conley v. P.G.& E. (2005) 131 Cal.App.4th 260, 267; DOL Opinion Letter FLSA2007-6 (February 8, 2007) [partial day absences not expressly recognized by Part 541 regulations may render an employee’s compensation not on a salary basis, thereby jeopardizing exempt status].) For example, the regulation for absences for personal reasons states:
Thus, if an employee is absent for two full days to handle personal affairs, the employee’s salaried status will not be affected if deductions are made from the salary for two-full day absences. However, if an exempt employee is absent for one-and-a-half days for personal reasons, the employer can deduct only for the one full-day absence.
(29 CFR § 541.602(b)(1); see also DOL Opinion Letter FLSA2005-7 (January 7, 2005).)
A California court noted that the combined effect of the federal regulations (29 CFR § 541.602(a) and (b)(1)) is to “preclude employers from docking the pay of an employee for an absence of less than a day (a partial day absence).” (Conley v. P.G.& E., supra, 131 Cal.App.4th at
*1. A different rule applies for treatment of absences due to unpaid leave under the federal Family Medical Leave Act (FMLA) and its effect on the salary basis test for exempt employees. “An employer is not required to pay full salary for weeks in which an exempt employee takes unpaid leave under the federal Family Medical Leave Act. Rather, when an exempt employee takes unpaid leave under the Family Medical Leave Act, an employer may pay a proportionate part of the full salary for time actually worked.” (29 CFR § 602(b)(7).) The DLSE recognizes that “adjustments in compensation and/or benefits are permissible where other statutory requirements are met, such as the family and medical rules that provide eligible employees with flexibility they need to take leaves on a “reduced leave” or “intermittent leave basis.” (DLSE Opinion Letter 2002.03.01, p. 7.) The DLSE views both the FMLA and California Family Rights Act (CFRA) as enactments covered in 29 CFR § 602(b)(7).
As you know I did not applied for FMLA and did not take unpaid leave.
Thanks.
The prohibition against deductions from an employee’s wages under the salary requirement is subject to several exceptions stated in 29 CFR § 541.602(b). The exceptions include and allow for deductions from pay when an exempt employee is absent from work for one or more full days for personal reasons other than sickness or disability (29 CFR § 541.602(b)(1); DLSE Manual § 51.6.14.3.) and for absences of one or more full days occasioned by sickness or disability (including work-related accidents) if the deduction is made from a bona fide plan, practice, or policy of providing compensation for such sickness or disability (29 CFR § 541.602(b)(2); DLSE Manual § 51.6.15.2.) The clear language in these referenced federal regulations allows for deductions from a salary only in increments of one full day. *1.
A corollary to the above recognized by the courts and the federal Department of Labor (DOL) is that an exempt employee’s salary cannot be subject to reduction for absences less than a full day under the above stated federally recognized exceptions. (See Abshire v. County of Kern, 908 F.2d 483, cert denied, 498 U.S. 1068 (1991) [deducting an employee’s salary for absences less than one day violates FLSA salary basis test]; Conley v. P.G.& E. (2005) 131 Cal.App.4th 260, 267; DOL Opinion Letter FLSA2007-6 (February 8, 2007) [partial day absences not expressly recognized by Part 541 regulations may render an employee’s compensation not on a salary basis, thereby jeopardizing exempt status].) For example, the regulation for absences for personal reasons states:
Thus, if an employee is absent for two full days to handle personal affairs, the employee’s salaried status will not be affected if deductions are made from the salary for two-full day absences. However, if an exempt employee is absent for one-and-a-half days for personal reasons, the employer can deduct only for the one full-day absence.
(29 CFR § 541.602(b)(1); see also DOL Opinion Letter FLSA2005-7 (January 7, 2005).)
A California court noted that the combined effect of the federal regulations (29 CFR § 541.602(a) and (b)(1)) is to “preclude employers from docking the pay of an employee for an absence of less than a day (a partial day absence).” (Conley v. P.G.& E., supra, 131 Cal.App.4th at
*1. A different rule applies for treatment of absences due to unpaid leave under the federal Family Medical Leave Act (FMLA) and its effect on the salary basis test for exempt employees. “An employer is not required to pay full salary for weeks in which an exempt employee takes unpaid leave under the federal Family Medical Leave Act. Rather, when an exempt employee takes unpaid leave under the Family Medical Leave Act, an employer may pay a proportionate part of the full salary for time actually worked.” (29 CFR § 602(b)(7).) The DLSE recognizes that “adjustments in compensation and/or benefits are permissible where other statutory requirements are met, such as the family and medical rules that provide eligible employees with flexibility they need to take leaves on a “reduced leave” or “intermittent leave basis.” (DLSE Opinion Letter 2002.03.01, p. 7.) The DLSE views both the FMLA and California Family Rights Act (CFRA) as enactments covered in 29 CFR § 602(b)(7).
As you know I did not applied for FMLA and did not take unpaid leave.
Thanks.
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