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October 29, 2010
FLSA Continues to Confound Compensation People

Many of our readers firmly believe that the Family and Medical Leave Act is their biggest headache, but with the Department of Labor’s new tough enforcement of the Fair Labor Standards Act, the ache of that may be worse. Here’s the most recent set of questions our legal editors have fielded.

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Q: One of our salaried exempt employees took a week of paid time off, but she had to work one day that week because of an emergency. She’s now demanding not just a full week’s salary but one additional day’s salary. I would rather credit her PTO bank with 8 hours, as we would for nonexempt workers.

A: With limited exceptions, a salaried exempt employee must receive his or her full salary for any week in which he or she performs any work, without regard to the number of days or hours worked. But the DOL has stated that deductions from an exempt employee’s leave bank will not affect his or her exempt status, as long as the employee’s salary is not reduced. So your employee must be paid for the full week, but we are aware of no federal or state law that would require you to pay the employee for an additional day’s work instead of crediting her PTO bank with 8 hours.

Q: If we suspend a salaried exempt employee for 1, 2, or 3 days, are we obligated to pay the person during that suspension?

A: Deductions from the pay of exempt employees may only be made for unpaid disciplinary suspensions of 1 or more full days, imposed in good faith for infractions of a workplace code of conduct. The employer must have a written policy applicable to all employees in order to do this. Deducting from the pay of nonexempt personnel is permissible with fewer requirements.

Q: We have asked an exempt employee to work on a Saturday during a special event. He refuses, saying that is not his normal schedule, and helping would take him over his usual 35-hour workweek. Can we mandate that he show up, and if we do, must we pay him extra for the time?

A: You may require the exempt employee to work on a Saturday. And, any exempt employee may be required to work more than 40 hours in a workweek without earning extra pay. Extra pay for working on weekends is generally a matter of agreement between employer and employee. But keep in mind that Saturday work may interfere with the religious observances of some employees.

Q: I understand that mortgage administrators are now to be classified as nonexempt. [The reader is referring to a recent Letter of Interpretation from DOL, changing this classification.] We have an originator who made $107,000 in 2009 and is on track to make over $100K this year. Doesn’t he qualify for the highly compensated exemption?

A: An employee earning at least $100,000 in a year is exempt without passing the full duties test if he or she (1) customarily performs any of the exempt duties of an executive, administrative, or professional employee; (2) primarily performs office or nonmanual work; (3) has compensation that includes commissions, and nondiscretionary payments—but not board, lodging, medical insurance payments, or the cost of other fringe benefits. Even if such an employee doesn’t work for a full year, he or she may still qualify for the exemption if his or her pro rata earnings meet the salary requirement.

Related FLSA articles:

Donning and Doffing Remains Tricky FLSA Issue
Are Drug Sales Reps Exempt
FLSA Case: Compensation for Time Spent on BlackBerry During Off-Hours

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