Salaried or Hourly

[lokan]

I am a worker in NYS who is being classified as salaried. The FLSA salary basis criteria appear to indicate a minimum salary must be guaranteed. However, my employer claims they can put me on leave without pay as long as it's for a whole day (8 hours) and not pay me. I claim this makes me hourly and not salaried.

What are my rights to compensation as a salaried employee?

 

[cbg]

Your employer is correct - IF your absence is for one of the very few (and rigidly controlled) reasons for which docking an exempt employee is permitted under the law. They are:

1.) If it is your first or last week of employment and you do not work the entire week

2.) If you are absent for one or more full days for personal reasons other than sickness or disability

3.) If you are absent for one or more full days for reason of illness or disability, on condition that your company has a bona fide sick time policy with a reasonable number of days and you either have used all the time available or are not yet eligible for it

4.) You are on FMLA (in this instance, and ONLY this instance, your pay can be docked on either a full day or partial day absence, whichever is applicable)

5.) As a penalty imposed in good faith for a major safety violation (and ONLY for a major safety violation - suspensions of less than one week for any other reason must be paid)

If your salary has been docked for any of these reasons, that is a legitimate, legal deduction, permitted under both the FLSA and the new Fair Pay Act, which does not in any way invalidate your exemption.

In every state it is also legal to dock a time bank (vacation, sick or personal time) for full day absences with or without the employee's permission, and in every state except California and Washington (where some restrictions apply) it is legal to dock a time bank in partial day absences as well.

If your pay has been docked for any reason other than the above, then you may well have a legitimate claim, for which you can file a complaint with the state DOL. It is doubtful, however, that one (or even a couple of) occurance(s) will serve to totally invalidate the exemption, (assuming that you are legitimately classified as exempt in the first place.)

Edited to make the following correction;

Under the Fair Pay Act, which goes into effect on August 23, the restriction that ONLY a suspension for a major safety violation can be docked is expanded to include ANY kind of disciplinary suspension, not only for a safety violation.

 

[lokan]

Scenarios not subject to exemption?

#1. I am working a task that comes to an end. I am ready, willing and able to work, but no additional work is immediately available (but there might be in the near future). The employer puts me on leave without pay. Doesn't the employer have to guarantee some amount of pay or recategorize me as hourly? How long must pay be guaranteed if they want to call me salaried?

#2. My employer shuts down at the end of the year. They state I must use my paid vacation days or take unpaid leave if I don't want to or don't have sufficient paid vacation. I can see this one being a little more gray since they may potentially pay me through vacation. However, the employer has an accrual-based vacation system and new hires may not have earned sufficient vacation yet to cover the week-long shutdown.

 

[cbg]

1.) If they are putting you on leave because they have no work for you, they MUST pay you till the end of the week in which the leave begins. After that, they have no further obligation to pay you at all until they actually have some work for you and you begin working. They do not have to pay you for any week in which you do NO work at all - they do have to pay you for any week in which you perform SOME work, with the exceptions I noted above. This does not invalidate the exemption.

2.) As you say, this is a little bit of a gray area and depends upon several factors. It is possible, depending on the exact circumstances, that what you describe might be legal; it's also possible that it wouldn't be.It's also not impossible that it might be different from one employee to another. How closely the shut-down week corresponds to the pay week, state law, how much vacation time each employee has, and to a certain extent state law, all factor in. For the most part, though, an exempt employee would have to be paid for the full week, although requiring them to use any vacation time they may have accrued IS legal in most states.