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This report includes a summary of key changes, including the salary level test and salary basis test.

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February 13, 2010
PTO Problems: Using Up Leave, Negative Balances and Double Counting

In a 2010 BLR webinar, “Solving PTO Problems: How to Reduce Unscheduled Absences Without Alienating Employees or Violating the Law,” attorney Catherine Moreton Gray addressed various situations employers face involving employees who use up leave in paid time off programs.

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When a worker has exhausted his or her PTO allotment but still needs to be out on leave, Gray advised employers to:

  • Offer unpaid leave or some type of medical leave. Another option is terminating the employee and letting him or her reapply when able to return to work. (Be aware of ADA/FMLA/workers’ compensation issues.)
  • Always look at the broader picture in these situations, and seek legal counsel. “You want to make sure you’re not discriminating in any way,” she said.

If a worker has received advance paid time off and then his or her employment is terminated with a negative balance, should employers try to collect? Gray said the laws implicated in this situation relate to deductions from pay and on final paychecks.

Addressing questions about double counting, Gray advised employers to check their leave policies to make sure employees must exhaust their vacation and other paid time off along with their FMLA entitlements. “You don’t want them coming back from FMLA leave and then taking additional time off,” she said.

Catherine Moreton Gray is an associate attorney in the Labor and Employment section of Robinson & Cole LLP in Hartford, Conn. She has more than 20 years of experience in human resources and employment law. Contact her at cgray@rc.com.

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