Salaried Employee docked pay for 1 day off.

I am an exempt salaried employee. My duties include supervisory, administrative and I am also on call 24 hours a day for emergency situations. I work in a Customer Service Help Desk. This year I was in the hospital with a Heart problem. My hospitalstay depleted my vacation and personal days. I have put in overtime since my hospital stay and I also was approval for FMLA for my condition. Recently I missed a day of work. I was docked for a day's worth of pay. I do not think this is fair, I am wondering if this is legal?

2 answers  |  asked Oct 17, 2007 11:06 PM [EST]  |  applies to Ohio

Answers (2)

Christina Royer
Possible FMLA Issue

In addition to Neil Klingshirn's comments about the overtime issues, I believe this question may implicate the FMLA.

When employers approve an employee's FMLA leave, they must allow the employee up to 12 weeks of leave each year.

FMLA leave may be taken intermittently (i.e., a day off at a time over a period of time) or it may be taken consecutively (i.e., 2 straight weeks off, or 12 stratight weeks off).

The catch is that FMLA leave is unpaid. Although employers cannot deny eligible employees the time off, they are not obligated to pay employees for that time away from work.

Many employers have policies where certain amounts of leave are paid, whether through accrued vacation time or through short- or long-term disability programs. But, these programs are voluntary, and the law does not require employers who do not have these programs to pay employees for FMLA leave taken.

It is not clear from the question whether you exhausted FMLA leave in connection with your surgery, or whether the FMLA leave was granted for the medical condition that necessitated the surgery.

If you had remaining FMLA leave after returning from surgery, and missed the day for reasons relating to the medical condition, then the employer may elect not to pay you for the day missed. This is because it is counting that day towards your FMLA leave.

If you missed work for a reason that is unrelated to your medical condition, then the employer should not treat it as FMLA leave, and should neither dock your pay, nor charge that day against any remaining FMLA leave that you may have.

posted by Christina Royer  |  Oct 18, 2007 1:56 PM [EST]
Neil Klingshirn
You may be entitled to reimbursement for your docked day.

Your question asks whether you are entitled to overtime because your employer docked your pay for a hospital stay after you ran out of vacation and personal days. The answer is "maybe."

As a general rule, you are entitled to overtime unless you are "exempt" from it. Employees who perform supervisory and administrative duties are exempt from overtime if they are paid "on a salaried basis." To be paid on a salaried basis, you must be paid a predetermined amount of at least $455 each week without deduction based on the amount or quality of work performed. Thus, if your employer docks your pay, it is not paying the predetermined amount.

An employer is allowed, however, to make the following deductions:

"1. Deductions from pay may be made when an exempt employee is absent from work for one or more full days for personal reasons, other than sickness or disability. 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.

"2. Deductions from pay may be made for absences of one or more full days occasioned by sickness or disability (including work-related accidents) if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability. The employer is not required to pay any portion of the employee's salary for full-day absences for which the employee receives compensation under the plan, policy or practice. Deductions for such full-day absences also may be made before the employee has qualified under the plan, policy or practice, and after the employee has exhausted the leave allowance thereunder. Thus, for example, if an employer maintains a short-term disability insurance plan providing salary replacement for 12 weeks starting on the fourth day of absence, the employer may make deductions from pay for the three days of absence before the employee qualifies for benefits under the plan; for the twelve weeks in which the employee receives salary replacement benefits under the plan; and for absences after the employee has exhausted the 12 weeks of salary replacement benefits. Similarly, an employer may make deductions from pay for absences of one or more full days if salary replacement benefits are provided under a State disability insurance law or under a State workers' compensation law."

My read is that, unless you receive short term disability or sick pay for the day spent in the hospital, you will not be exempt for that pay period.

You are probably only entitled to overtime for that pay period. If you were paid a salary all other weeks, then you are likely not entitled to overtime in those weeks. Further, the employer can avoid an overtime claim if it pays you for the sick day.

Consider explaining this to the employer and suggesting that you should be paid. The relevant law is section "29 CFR 541.602", which you can find by googling it. Your employer would be wise to pay you for the day.



posted by Neil Klingshirn  |  Oct 18, 2007 12:47 PM [EST]

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