salary deduction

i know its illegal to deduct an employee's salary paycheck if they are out one day, but is it still illegal if the employee is on a 3 month probabtionary period? If im late, i have to make up the time even though im salary, i thought that was illegal, as well as if i miss a day its deducted, i only have 5 hours vacation time accrued so far and i cant use that until im there for 3 months, is all this right?

1 answer  |  asked Sep 10, 2004 1:27 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
Docking Exempt Employees

Under the Fair Labor Standards Act, the key distinction is not between salaried and hourly employees. The key distinction is between exempt and non-exempt employees.

All employees are considered non-exempt unless an employee falls under an exception to this general rule. An exception to the rule is called an exemption. There are three big exemptions, and a good number of smaller ones. The big three are for professional, executive and administrative employees. To a very large extent, exactly which employees fall under the big three exemptions is determined under regulations from the US Department of Labor. It is these regulations that you are reading about in the newspapers lately.

Non-exempt employees are entitled to overtime after 40 hours in a workweek. Exempt employees are not entitled to overtime, but employers can pay overtime to exempt employees if the the employers wishes to do so, and the employer can pay overtime to exempt employees on a basis other than time-and-a-half. Non-exempt employees are typically paid on an hourly basis. Exempt employees are typically paid on a flat rate or salaried basis.

Generally, whether an employee is exempt depends not on the way the employee is paid, but on the type of work the employee does. For example, a clerical employee would normally be considered a non-exempt employee entitled to overtime. An employer cannot make a clerical employee an exempt employee by paying that employee a salary.

And it is the work that is important, not the title. So, an employer cannot make a file clerk an exempt employee by calling that file clerk a "vice-president for document storage," if that employee's primary job continues to be filing documents.

Although the work is what is primary, an exempt employee can become a non-exempt employee if the employer treats the employee like a non-exempt employee. For example, let's take the example of attorneys working for a big law firm. Attorneys would typically be considered exempt employees. Attorneys usually keep detailed records about their time, but for billing purposes and not pay purposes. Attorney time records would not make an attorney a non-exempt employee.

But let's say this big law firm started to require its attorneys to be in by 9 AM. Not only that, but attorneys could take only two 10 minute breaks per day, and 30 minutes for lunch. Any attorney failing to arrive on time, or taking more than the time allowed for breaks would be docked. So, if an attorney arrived at 9:15 AM, that attorney would be docked for one-quarter hour of pay. If another attorney took 60 minutes for lunch, that employee would be docked one-half hour of pay.

In this hypothetical example, the attorneys in this big law firm would actually be non-exempt employees entitled to overtime. Docking the attorneys for lateness isn't illegal. The docking only changes what the attorneys are entitled to receive as compensation.

Note that not all docking will make exempt employees non-exempt. For example, let's say that one attonrey at this big firm decided to take a Monday off, for whatever reason. Let's say that this attorney had used up all of her available leave. So, the law firm docks the attorney one full day of pay for the day taken off. In this case, the docking of the full day will not cause that attorney to become a non-exempt employee entitled to overtime. Generally speaking, exempt employees can be docked for full days, but not part days, without the exempt employee becoming a non-exempt employee.

posted by David M. Lira  |  Sep 13, 2004 08:59 AM [EST]

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