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Sick Leave for Exempt Employee

If an exempt employee is absent from work for a whole week due to being sick she answered some emails and phone calls while out, can we require her to use her sick leave? If yes, if the employee does not have enough sick leave accrued can we deduct the time from her salary?

Under the federal Fair Labor Standards Act (FLSA), exempt employees must be paid on a salary basis, meaning they must receive their full, predetermined salary for any workweek during which work is performed regardless of the quantity or quality of work performed.

An exempt employee who performs absolutely no work during the workweek need not be compensated his normal salary. Exempt employees can be required to use their PTO/paid sick leave when absent due to illness, even if the employee performs some work duties from home.

Consider the amount of time the employee spent completing any work duties. If she spent only a few minutes taking calls or briefly responding to emails then the time is considered de minimis or insignificant. However, if the employee spent a considerable amount of time working then the employee is entitled to her normal salary and shouldn’t be forced to use any PTO.

This is when a work from home policy can be beneficial. Such policies explain when and to what extent working from home is appropriate.

Let’s assume the employee’s work time was insignificant and she must use her PTO accruals but the employee doesn’t have enough sick leave accrued to cover the entire workweek.

The FLSA allows deductions from exempt employees’ salary in limited circumstances, one of which being when an exempt employee is absent for a full-day due to sickness as long as the employer has a bona fide plan, policy or practice of providing compensation for salary lost due to sickness, such as PTO or paid sick leave.

In this case, deductions from her salary for full-day absences may be made after the employee has exhausted her PTO accruals. It’s important to remember that partial-day deductions from the employee’s PTO bank is permitted but the law allows for only full-day deductions from the employee’s salary.


October 16th, 2017, 12:51 PM |  Posted in: Benefits, Compensation |
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Paycheck Payout in AZ

In AZ, when an employee is fired the employer has 3 work days to pay the employee. How does this work when the employee was fired on Monday and the work shift is Thursday – Saturday? Does the employer have until Saturday to pay or 3 days from the Monday that the employee was fired? The department works 7 days a week so I am confused as to the term “work days”…. the department’s work days or the employee’s work days?

According to Arizona statute 23-353, “When an employee is discharged from the service of an employer, he shall be paid wages due him within seven working days or the end of the next regular pay period, whichever is sooner.

Though “working days” is not clarified, it’s typically used to refer to the days the company is open for business. So, if the company is open seven days a week, then the employee should be paid within seven days or by the end of the next regular pay period, whichever is sooner.

October 16th, 2017, 12:38 PM |  Posted in: Compensation |
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Reserve Duty Interruptions

Hello, We are defense contractors supporting the US DOD. We have an employee that is critical to one of our contracts on the administrative side of things. She oversees all of the new hire in-processing on a particular naval base overseas. She is in the reserves (Texas national guard reserves I believe) and she is frequently out of the office (which is an ordeal in itself being overseas, traveling back to Texas for reserve duty takes an extra work week). She attends multiple reserve duty training a year (some lasting longer than a month). She just got back from reserve duty that lasted 5 weeks less than 2 months ago. She submitted a letter from her reserve unit yesterday needing to attend reserve duty next week and got on a flight today. In her defense, the letter was dated yesterday as well, I do not think she dropped the ball notifying us – I think it was sprung on her as well. My question is what rights do we have as an employer when it comes to reserve duty and excessive absences due to it? This is becoming problematic for our organization and the government customer is being left unsupported frequently. Thank you!

The federal Uniformed Services and Reemployment Rights Act (USERRA) provides job rights and benefits for employees who engage in protected government service. Reserve duty and training in any military branch is covered under USERRA.

There are no eligibility criteria for coverage under USERRA. The law applies to all employers and employees.

Under USERRA, employers are required to grant leave to employees who need time off to serve in the military. Termination or any adverse employment action against the employee because of his/her service is prohibited.

Employees must provide notice, written or verbal, to their employers regarding their need for military leave as soon as possible. Though employees are strongly recommended to provide at least 30 days notice, doing so is not required under the law since it’s often not feasible. Also, written notice cannot be mandated by employers.

Upon return from leave the employee must be reinstated to his/her same position or the position he/she would’ve been entitled to if leave was not taken. Any benefits that would’ve been awarded to the employee if he/she hadn’t taken leave must be provided i.e. promotion, pay increase, seniority, etc… Military leave is not to be considered a break in employment.

There is a five year cumulative limit on periods of service with a given employer. Training time is not counted in the five year cumulative total.

So, as long as the employee in question provides notice of her need for military leave (even if it’s not advanced notice), is released from service under honorable conditions, and doesn’t exceed five years of cumulative leave, then she is entitled to military leave. There’s not much you can do besides prepare for the employee to be on leave.

Talk to the employee and find out if she knows how often and for how long her needs for military leave will be throughout the year. She may not have a definitive answer but she may at least have some idea that can help you plan ahead. Consider coming up with a plan together. Determine how the client can best be supported during her absences, especially the immediate ones? Does a coworker have all the information/training needed to immediately start performing this employee’s job tasks if she is called to service without notice again? Can a per-diem employee be trained in her job duties as back-up? Again, the best thing is to prepare for the absences as best as possible.


October 16th, 2017, 12:24 PM |  Posted in: Attendance Management |
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Severance Pay

If an employer gives an employee a severance agreement because they are closing their doors on Nov. 30th. And, then the employer wants the employee to leave sooner than the date on the agreement. Does the employer have to pay that employee to Nov. 30th?

The federal Fair Labor Standards Act (FLSA) establishes compensation requirements affecting employees in the private sector and in Federal, State, and local governments.

Under the FLSA, employees are either non-exempt or exempt.

Non-exempt employees must be paid for all hours worked and must receive time and one half their regular rates of pay for any hours worked over 40 in a given workweek. Most employees are non-exempt. There is no requirement to pay non-exempt employees for time not actually worked.

Conversely, exempt employees receive a fixed predetermined salary and are excluded from overtime pay provisions. Exempt employees must receive their full salary for any workweek during which work is performed regardless of the quantity or quality of work performed. There are limited permissible deductions from an exempt employee’s salary, one of which being during an exempt employee’s initial or terminal week of employment. During either of these weeks an exempt employee’s salary can be deducted to compensate the employee only for time worked.

Thus, there is no requirement for an employer to pay an employee when the employee’s last day of worked as been pushed up. Of course, the severance agreement should be adhered to. So, if the agreement requires compensation up until the 30th then the employer must comply with the terms of the agreement.

October 11th, 2017, 2:50 PM |  Posted in: Termination |
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Light Duty

How long can an employee be on light duty? Is there a time limit?

There is no set time limit for how long an employee can be on light duty. It depends on the details of situation, specifically is the employee protected by any federal or state leave or anti-discrimination law, the employer’s past practice with similarly situated employees, and any agreements made with the employee.

Let’s say the employee’s condition is considered a disability under the federal Americans with Disabilities Act (ADA). The ADA requires employers to provide reasonable accommodations to covered employees to allow them to perform their jobs. A reasonable accommodation may be job modifications or light duty.

There is no magic number for how long light duty must be allowed. Thus, employers must consider what they’re able to provide to employees and past practice. Basically, the ADA requires employers to have interactive dialogue with employees to determine what, if any, reasonable accommodations can be made to allow the employee to perform their duties. Employers must have honest communication with the employee about requested accommodations and alternate ones.

So, an employer may allow an employee to work 3 weeks of light duty but at the end of that three weeks the employer must open the dialogue for other possible accommodations, if any.


October 11th, 2017, 2:10 PM |  Posted in: Workplace Management |
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