Exempt Question

[ewygirl]

What is the name of your state (only U.S. law)? New York

The answer is probably "Yup, not right but legal." My husband is in IT, which means that he is an exempt employee and works over 40 hours a week between the middle of the night phone calls , weekend tech questions, and calls while on vacation. He recently took a vacation. He thought that he still had vacation time left, but in the end he did not have enough. So, he was not paid for those 2 days despite working one of those days. When he asked if he could be paid for the day that he worked he was given the "you are exempt and not paid for not being at work." Oh well...But this got me thinking. His pay is docked when he takes 1/2 a day off. So essentially he could work 50 hours in one week, but since he was only worked 5 hours in one day they can dock is pay. Is this legal?

 

[OHRoadwarrior]

It depends on what their policy is. As long as they apply it uniformly and he makes more than minimum wage for the week, they are good. My spouses company has a policy where salaried personnel can leave any day after 4:15 minutes of work and it is considered a full day.

 

[cbg]

Slight disagreement here. 40 hours a week has no legal meaning for an exempt employee. An exempt employee works the hours that it takes to get the job done, and the salary pays for all the hours worked, no matter how many or how few.The employer MAY put in a schedule of core hours that an employee must be there, can dictate schedules, or decide what is a full day - exempt does not mean that they get to make up their own schedules. But the number of hours worked is irrelevant when the employee is exempt.

It is not only legal, but it is expressly permitted by the FLSA that an exempt employee who voluntarily takes a day off be docked for it as long as it is a full day.

Docking for partial days is a different story. An exempt employee can only be docked PAY in full day increments, with only two exceptions; if the time taken off is attributable to FMLA, or if the employee is in either their first or last week of employment. But an exempt employee can be docked PAID LEAVE time in any increments the employer wants, either full or partial days. So if you are saying that if he takes a half day, the dollars in his paycheck that week are less, that's a violation of the FLSA. But if you are saying that if he takes a half day, his vacation balance is docked, that's fine, dandy, and perfectly permittable by law.

 

[ewygirl]

So if you are saying that if he takes a half day, the dollars in his paycheck that week are less, that's a violation of the FLSA.

Yup, 1/2 a day of work gets 1/2 a days pay. He has no vacation, personal or sick time left, so he would be paid for "35" hours of work instead of "40". There is nothing that he can do about this, since he has a job and he needs this job. ce la vie

Thanks cbg.

 

[cbg]

A point:

If he's used up all his paid leave for the year and is still taking time off, he might want to consider that it is quite, quite legal to fire someone for excessive absences. Even an exempt employee who normally works 50 hours a week.

 

[ecmst12]

However, if he gets a paycheck which is short half a day's pay, he can file a complaint with the state DOL.

 

[ewygirl]

cbg you are assuming that he acquires a decent amount of time. Sick, Vacation, Personal, Holiday total 15 days. 10 holidays and 5 vac/sick/personal. Life happens and he got the flu last Feb which took 2 days from the 5, which in turn made him short when we took a vacation in July. That's far from excessive. He has been at his current job for 6 years after 10 years he get 5 more days.

Thanks ecmst12. The job market is not very good for him to be complaining to anyone. I had a feeling that it was not legal for them to have docked his pay, but it happened. He has a job, which puts food on the table and a roof over our heads. His employer is an *@*. No one can change that fact.

 

[cbg]

I'm not assuming anything. Paid leave is not a legal entitlement. Excessive is what the employer says it is. There is no law in any state requiring that he receive any paid leave at all. He is not entitled by law to a single day's vacation or personal time; while there are different laws regarding pay for sick time it is also not an entitlement that he receive paid sick time either. He could LEGALLY be fired for taking a single day's vacation in an entire year. It's not what you or I consider excessive - it's what the employer does. I'm not questioning that the amount of time he apparently gets is substantially less than the norm, but that's not the issue. The issue is that in most states he could legally be required to work 365 days a year; your state is one of the few where he can only be required to work 6 days a week, but past that he is not entitled by law to ANY time off at all.

 

[ecmst12]

Unless his salary is high enough to offset that pathetic amount of leave time he gets, I question why he would stay there for 6 years. He should look for another job. Chances are VERY high he can get a better deal elsewhere.

 

[ewygirl]

Yikes! Sorry that I assumed that you assumed. Ok. point taken.

ecmst12: Yeah, his jobs sucks and he's treated poorly. But, as I said it's a job and not many IT jobs are available in our area unless he travels 4 hours to and from NYC. Kind of the lesser of 2 evils. We are expecting twins this January and had a huge financial set back this summer, so no rocking the boat here. Thanks again.

 

[cbg]

With that in mind, let me ask another question - how many employees does this employer have?

 

[st-kitts]

Just going to throw out the there that the computer exemption is unique. An exempt computer professional may be paid by the hour (straight, no OT) so long as the pay exceeds $27.63 per hour and they perform the duties covered for the exemption. OP mentions her husband is exempt, and we may assume exempt salaried, but that may not be the case.

 

[cbg]

True, if he's exempt hourly then there's nothing to be done anyway.