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March 11, 2009
Reader Questions About Pay: How, How Much, and for What?
HR managers across the country may believe that the Family and Medical Leave Act (FMLA) is their biggest headache. But no matter how much they may struggle with that and other employee leaves of absence, how to pay employees in compliance with applicable laws crops up just as often. Why the different perceptions? Some HR managers aren’t aware that the way they’ve classified their employees may be incorrect—as may other wage and hour decisions.

In fact, the federal and state departments of labor come after employers much more often on these pay issues than do individual employees who sue for violation of FMLA. So it’s no wonder that our subscribers ask many, many questions about wages and salaries. Here’s a sampling of the questions our legal editors have been asked in recent weeks.

Q: Is there a limit on the number of hours that an employer can require an employee to work in a day?

A: The federal wage and hour law, the Fair Labor Standards Act (FLSA), sets no such limit. It does say that nonexempt employees who work more than 40 hours a week must be paid time-and-a-half overtime. Beyond that, child labor laws are very specific about hours that workers of various ages under 18 may work per day and per week—as well as the type of work they’re allowed to do. There are still more restrictions under state and federal laws relating to healthcare workers, airline pilots, truck drivers, and workers in other safety-related positions.

Q: If an exempt employee at a manufacturing plant that is closed for a holiday week works on one day of that week, can he or she be paid for only one day?

A: The general rule under FLSA is that exempt employees must be paid a set amount, or salary, for each week or pay period, regardless of the number of hours they work or the level of their productivity. Under limited circumstances, they can be paid for less than a week for disciplinary reasons. But in this circumstance, if the exempt employee worked at all in the given week, he or she must receive the full week’s salary.

Q: How should time worked and paid leave taken be treated for an exempt employee in a week when the total hours during a holiday week totaled more than 40? Should either kind of hours be adjusted down to 40?

A: Again, the general rule is that an exempt employee earns the same pay for each period, regardless of how much or little he or she works. So our legal experts guessed that the subscriber wanted to know if the excess time could be removed from the employee’s accumulated PTO. They referred to a Department of Labor opinion letter that allows employers to deduct partial-day absences from an exempt employee’s PTO bank.

Q: Can I ask an exempt employee to perform nonexempt work after her normal hours and pay her on an hourly, nonexempt basis for the extra work?

A:If you’re cautious about this, it can be done within limits. When the exempt employee puts in more than 40 hours a week doing the two jobs, you must pay overtime at a weighted-average rate of the hourly pay for both exempt and nonexempt jobs. And, if the employee works too many hours in the nonexempt job, his or her exempt status may be in danger. . subscribers can access all of our archived “Ask the Expert” questions here.

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