Exempt status and illness

[torimac]

What is the name of your state (only U.S. law)?
Texas

Let me just say that I disagree with my exempt status, but it is what it is. I did a search for exempt posts, but could not find anything for Texas that related to my situation.

I regularly work 50-55 hours a week. I am salaried. I was sick for a little over a week with bronchitis and used up all the sick days. My vacation was then used for the remaining days.

I am trying to understand the legality of this situation. If I have to work more than 40 hours to do my job, I am not paid any 'overtime' because I am exempt. But if I am sick, they do not have to take into account all the extra hours and can dock my pay or use my vacation?

 

[Zigner]

What is the name of your state (only U.S. law)?
Texas

Let me just say that I disagree with my exempt status, but it is what it is. I did a search for exempt posts, but could not find anything for Texas that related to my situation.

I regularly work 50-55 hours a week. I am salaried. I was sick for a little over a week with bronchitis and used up all the sick days. My vacation was then used for the remaining days.

I am trying to understand the legality of this situation. If I have to work more than 40 hours to do my job, I am not paid any 'overtime' because I am exempt. But if I am sick, they do not have to take into account all the extra hours and can dock my pay or use my vacation?

Yes. To be clear, from your description, it doesn't sound like they "docked" your pay. They are simply not paying you for the time you were not there.

 

[torimac]

That is true, they did not dock my pay for that time. But given that I have used all my PTO, if I am sick again I will have neither vacation or sick leave left. So, under that circumstance, can the not pay me for the day of illness? Or can I argue comp time due to the extra hours I regularly work?

 

[Zigner]

That is true, they did not dock my pay for that time. But given that I have used all my PTO, if I am sick again I will have neither vacation or sick leave left. So, under that circumstance, can the not pay me for the day of illness? Or can I argue comp time due to the extra hours I regularly work?

It would seem that they can deduct for full-day absences in your circumstance:

http://www.twc.state.tx.us/news/efte/salary_definition.html

 

[swalsh411]

Yes, they can legally reduce your salary for a full day absense. Being exempt does not mean you get unlimited paid sick time.

Comp time is not addressed in the FLSA and is not required by any law.

 

[LeeHarveyBlotto]

Or can I argue comp time due to the extra hours I regularly work?

Not on a legal basis. You are certainly free to try based on a sense of fair play, but legally, they hold all the cards here.

 

[Zigner]

With all that said - perhaps you should explore the issue of whether you are truly exempt...

 

[cbg]

We'll leave the question of your exempt status for another thread.

An employer may legally dock an exempt employee's pay so that you are literally unpaid for the time, in the following circumstances (and ONLY in the following circumstances):

1.) It is the first or last week of employment and you do not work the entire week
2.) The unpaid time is attributable to FMLA
3.) The employer offers a reasonable number of paid sick days and you either are not yet eligible for them, or have used all the paid sick days to which you are entitled
4.) You voluntarily take time off for personal reasons
5.) You are suspended for a major safety violation
6.) You are suspended for the violation of a written company policy which applies to all employees and which relates to workplace conduct.

There are NO other circumstances under which an exempt employee may be unpaid. In the case of numbers 1 & 2, the time can be either full or partial day increments; in the case of numbers 3-6 it can only be in full day increments.

However, in 49 out of 50 states and with only limited exceptions in the 50th state (California) an employer may ALWAYS force the use of other paid leave to cover the absences. Doesn't matter whether it's sick time, vacation time, personal time, or other paid leave; doesn't matter if it's full day or partial day increments, the ONLY time an employer is prohibited from applying such time with or without the employee's permission (or even knowledge) is if a legally binding employment contract or CBA expressly and in so many words says it is.

 

[swalsh411]

There are NO other circumstances under which an exempt employee may be unpaid.

Tell that to all the furloghed government employees. 1 day a week or 1 day every other week unpaid.

 

[Proserpina]

Torimac, would you qualify for intermittent FMLA? No, you won't get paid, but it would offer at least some protection.

 

[cbg]

Tell that to all the furloghed government employees. 1 day a week or 1 day every other week unpaid.

You know as well as I do that the government exempts themselves from all rules.

 

[cbg]

Torimac, would you qualify for intermittent FMLA? No, you won't get paid, but it would offer at least some protection.

Under FMLA, the employer could still, legally, force the use of vacation time for the absences, which my reading of the OP was the major concern.

 

[Proserpina]

Under FMLA, the employer could still, legally, force the use of vacation time for the absences, which my reading of the OP was the major concern.

Good point.

(As always!)

 

[Silverplum]

You know as well as I do that the government exempts themselves from all rules.

SP indulges in a bit of *righteous loathing!*