The Employment Law You Are Probably Breaking

Dear Evil HR Lady,

 If an exempt employee had to go to the doctor and missed an hour to three hours of work, can an employer dock pay? For example, a pregnant employee had an appointment and missed two hours of work. Can I dock her for two hours?

Regardless of the circumstance, can an employer dock a couple of hours of pay at all for any reason?

To keep reading, click here: The Employment Law  You Are Probably Breaking

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32 thoughts on “The Employment Law You Are Probably Breaking

  1. Great article. Thanks. It is my experience that most law firms consider paralegals non-exempt. However, most private corporations treat a paralegal as exempt. Can you weigh in on what your perception is in relation to a paralegal being exempt vs non-exempt, please?

  2. Good article. I also find that FLSA regs are some of the most difficult for supervisors and managers to understand. Especially difficult seems to be the concept of paying for overtime if the employee didn’t have permission to work the overtime. I’d be willing to bet that part of the law is broken fairly often, as well.

  3. Just for the record, in almost EVERY organization that I have ever worked in, EVERY single salaried employee is told they are not eligible for overtime. The employers don’t even pretend to know that there are such things as exempt or non-exempt, just that you are “salaried” so yes we can have you work 100 hours a week whenever we want. In corporate white collar America, overtime abuse is rampant. In fact, it is the accepted norm.

    1. I don’t think this is the accepted norm. I’ve never worked for an organization that did this. I think it’s rampant in small businesses because they don’t understand the law, but not in big corporations that have dedicatedHR.

      Even so, the law is so complex that you can find violations in every company.

      1. Please ask around. You will be amazed. It’s large public companies as well. And not simple mistakes of overlooking a violation here and there, but blanket statements that if you are salaried you do not get overtime.

        1. If you are salaried exempt that is true. Not all companies use the salaried non-exempt classification. In fact, I highly recommend against it.

          1. Ok now I am super intrigued. Why do you not recommend the salaried non-exempt and what do you recommend in its place? I can share that in most places I have worked that this seems to be the case as well and in organizations of 10,000+ people there was not one single salaried non-exempt employee. I know this because the payroll systems were built without a tracking system for this option even existing. But there were plenty of individuals in Operations, Marketing, Public Relations, Human Resources all fresh out of college getting paid on salary. It is my belief that every single one of them was misclassified as exempt because what possible exemption could they fall under?

            1. I don’t recommend salaried non-exempt because you still have to pay over time so you still have to track hours. So, just call it hourly with a set schedule.

              All those other areas easily fall under the professional or administrative exemptions. If the person is working independently and has responsibility for a project, process or something similar, they can be exempt.

              It’s not just managers who are exempt.

            2. Sorry my reply will be out of order as the “reply” button for some reason is not appearing below your response. The administrative function would never apply to an entry level staff person as it doesn’t meet the duties test. The administrative exemption is designed for relatively high-level employees whose main job is to “keep the business running.” The professional exemption is a little more gray, but states advanced knowledge must be in a field of science or learning. Obviously the fields I listed are not science, but I don’t think it can be ruled out that they could fall under the category of “learning”. There is, however, the requirement that work include consistent exercise of discretion and judgment and remember the 80% rule applies here, so they must do this 80% of the time they work and not just for a particular project or process. It is for these individuals, the entry level salaried staff, that should be instead what you recommended as hourly staff. The issue I have is that they are not ever. They are considered salaried and they are young and eager and willing to work the extra workload. So they do. And they don’t get paid for it, which I believe they should. In companies that have armies of legal and HR staff, this should be corrected, but it seems everyone just turns a blind eye.

            3. It’s impossible for me to classify a job based on what you’ve said. It’s entirely possible that the company is wrong. It’s entirely possible that they are right.

              But since it’s not you job, I wouldn’t spend one more second worrying about it. As you said, the people in the jobs are happy about them. So, let it go.

              Personally, I would abolish the entire FLSA and let everyone make their own deals with their employers.

            4. I don’t know if I would classify them as “happy”, but I do know when I was in their position I worked those hours because I thought I had to and I would have welcomed receiving proper payment for them. I later dated a man that worked for the Department of Labor and had things explained to me and was shocked and even angry. It would be exceedingly rare that entry level in corporate would be exempt. I don’t necessarily know that companies avoid this on “purpose” but I will say few make any effort to correct it unless forced to. And I would not recommend abolishing the FLSA. Remember that oppressive child labor is one of the provisions of this law as well and businesses had to be forced not to do this, just as one example. Without some element of protections in our labor laws, I suspect we would slowly roll back to the days of being indentured servants. Thank you for sharing your thoughts with me and I think your site is the best resources of its kind on the web. I really enjoy your commentaries and appreciate your taking the time to discuss an issue with me that I am obviously quite passionate about.

            5. Thank you! I’m glad you find my blog helpful. Feel free to tell your friends.

            6. I have found that salaried non-exempt and hourly have been terms used to differentiate staff for things like benefit eligibility and office or production employee.

            7. Good point Jeff…yes that could be a problem then if a non-exempt was moved to hourly. Hours would be easier to calculate and more straightforward but what would be lost in exchange (i.e. benefits and probably a host of other things) would be problematic. Also I suppose there would be not PTO in this arrangement either. Kinda makes a $50,000 per year job, for example, turn into a $35,000 a year job.

  4. At Exjob, I think our inside sales were salaried. They got commission on top of that. Many times they worked over their hours.

    I’m hourly at NewJob and was at ExJob too. In fact, I’ve always been hourly. I like it because I don’t HAVE to work overtime, and in fact, most employers don’t want me to. Being able to leave at 5 and leave the workplace behind at the end of the day and on weekends saves my sanity. (Although NewJob is waaaaaaay better than ExJob, I still am glad I get to do that.)

    1. I love the idea of a job that you don’t have to think about at the end of the day. I also do like a definitive start/end time (even though I love flexible schedules!) because I love boundaries.

  5. We have a vacation allotment and a sick time allotment. What if you have an exempt employee who has used all of their vacation time and all of their sick time for the year (it’s April) and they are going to be out for a surgery for two weeks in May? I know FMLA plays into this, but how would this employee’s compensation be handled?

    1. FMLA leave doesn’t require pay. And since the person isn’t willing, able and ready to work, you can handle it as unpaid leave.

  6. Under 29 C.F.R. §§ 825.500(f) & 825.110. DOL clarified that employers could “dock” the pay of FLSA exempt
    employees without jeopardizing the employee’s exempt status under the FLSA,

    1. I Googled your code and it was references FMLA. Employers don’t have to pay for FMLA time, that’s true. But routine doctor’s trips or leaving early for a soccer game are not covered under FMLA.

      If that is not what you’re talking about, then please provide me with the link to the correct spot in the federal code.

      1. Correct. Ths is only apply to FMLA-eligible employees. Sometimes routine doctor’s appointment “maybe” FMLA eligible (ie. pregnant woman).

        1. It’s actually quite rare for a pregnant woman’s doctor’s appt to be covered under FMLA. Because most women want to take the maximum time off after birth, very few will want to have FMLA apply prior to birth.

          And I’m pretty sure in an uncomplicated pregnancy, FMLA wouldn’t even apply until the actual birth. But, I am not an FMLA expert.

  7. You must be lucky, Evil. Based on 12 years of CA employment litigation and HR experience, I would estimate that 70-80% of employers (large and small) in this state misclassify at least a few employees as exempt. IT help desk employees and administrative staff (inlcuding HR) are regularly misclassified. It’s also interesting to me that many (even most) times, the practice disparately impacts women and minorities and yet it is rarely approached as a discrimination issue.

    1. As I said above, the law is so complex that you can find violations in almost every company. But the fact that you can find violations doesn’t mean people are violating the law purposely.

  8. I think this all comes down to the fact that we’re using circa. 1930s labor laws in the 21st century…

  9. I work for a staffing organization that supplies contract workers all over the country. We bill hours to our clients, so both our exempt and non-exempt contractors are paid hourly. Do exempt contractors still need to be paid full salary? Even though we cannot bill for the hours worked.

    1. Depends on if they are IT contractors nor not. IT has different rules.

      However, otherwise, yes you do have to pay them. If you don’t, you’ll have to pay them overtime when they go over 40 hours.

        1. There are some exceptions for IT that allow you to pay them hourly, without paying time and a half for overtime. But you have to pay them for every hour worked.

          So you cannot say, $10 an hour, up to $400 per week. You have to say $10 an hour for every hour worked, even if they work 80 hours.

  10. I just went through this situation with management, payroll and an employee. Exempt ee had used all PTO, was shorted salary a couple of days. I investigated and emailed payroll with FLSA info pasted below. She came over to me asking if we really should since management wouldn’t like that. Of course they wouldn’t and didn’t like, but this forced them to confront and manage the issue, not ignore the law.

    Then I had to explain and clarify with the ee that yes, he needs to be paid his salary but future PTO will be used to meet that wage for future shorted days.

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