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Apr30

Sick leave for salary paid employees. Time clock and overtime Florida

If I am salary employee and i come to work and punch in but after an hour or two of work leaves because they are ill is is legal for the employer to dedust sick hours for the time they were not here? Example: I am salary entered work at 8:00am and left at 10:00am. My employer has paid me for the full day but only 2 hours regular and 6 hours sick time.

Also is it the law to have salary employees punch in and out the time clock?

I do not supervise any employee and i also do not get paid over time. Is this against the law?

I am from NY and have had seven staff members to supervise it seems like either the laws are not being followed or Florida state has different laws concerning salary employees.

When a salaried exempt employee works a few hours and then goes home, it is important that the employee be paid for the entire day. How the employer tabulates that time, is not important. If the employer wants to count it as 6 hours of sick time and 2 hours of work time, that’s fine. Some employers would simply pay the employee his or her usual salary and not deduct any sick time. But, there is no law requiring the employer to do so.

If the employer in this case paid the worker only for a partial day, that would potentially endanger the employee’s salaried exempt status. Under the federal Fair Labor Standards Act or FLSA, an employee whose pay is docked for working partial days, is entitled to overtime when working more than 40 hours per week. However, in this case the employee’s pay is not docked. He is being paid his full salary.

Here’s one way to look at it. Suppose Suzie’s employer very generously gives workers 80 hours of sick leave each year. Suzie is a salaried exempt employee who has gone home sick 13 times in the past 60 days. Each time, Suzie worked 2 hours before going home. Should Suzie be entitled to an additional 10 paid sick days in the next 30 days? That would mean that she was away from work a total of 23 days in 90 days. Most employers would say “no.” Suzie has used about 78 hours of sick time already, and only has 2 hours left.

The FLSA also requires employers to keep accurate records of the hours that employees work, whether those employees are hourly or salaried. One way that many employers choose to do this is to have both salaried and hourly employees punch a time clock. There is nothing illegal about this, as long as the salaried exempt employee’s pay isn’t docked when he works less than 40 hours in the week.

There is not enough information to determine if this employee should genuinely be classified as salaried exempt or salaried non-exempt. The FLSA exempts employees from overtime requirements based on their primary job duties. Some of the exemptions are for executives, administrators, professionals and outside sales people. A number of articles in the archive discuss these exemptions. If you read them, and still have doubts, feel free to post another question.

Employment laws are established by both federal and state governments, so some laws in Florida will be different from those in New York.

Here’s some free advice that the employee didn’t ask for, but we’re going to give, anyway. Frequently Northern transplants to Florida assume that the way things were done in their home state is the one and only “correct” way, and the way things are done in the South is “wrong.”  (New Yorkers are especially famous for this attitude.) This employee will be much happier in the sunny South if he or she realizes that sometimes things can be different without being “wrong.”  

This entry was posted on Wednesday, April 30th, 2008 at 10:46 am and is filed under
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68 Responses to “Sick leave for salary paid employees. Time clock and overtime Florida”

  1. Kristy Says:

    Employees earn sick time which is not available to them until one year of service. If a salaried employee has a sick day within the first year and there is no available sick time due to hire date, is the employer still responsible to pay 40 hours?

  2. Caitlin Says:

    Kristy,

    In this situation, the employer may legally withhold payment for that day, provided the salaried employee did not work at all on that day. Suppose Julie is a salaried exempt employee. She normally works 5 days per week. One Thursday Julie calls in sick. Since she has no sick time available, the employer may legitimately pay Julie 4/5 of her usual salary for that week.

    However, if Julie came to work on Thursday and went home after 2 hours because she did not feel well, the employer would be responsible for paying her entire salary for the week.

  3. esotericsean Says:

    Can anyone tell me if these laws apply to California as well?

    I’m paid salary where I work, and we’re told to clock in and out for the day and for lunch break. If we work less than 8 hours a day, they dock our pay. I was under the impression that this wasn’t legal, but I’m still confused about it. Can anyone help?

    Thanks

  4. Caitlin Says:

    Hi Eso! Yes, these laws apply in California, as well. In fact, California has even more strict laws on this matter. From your description, it sounds as if you are a salaried non-exempt employee. That simply means an employee who is paid by salary, but entitled to overtime when he or she works more than 40 hours per week (or more than 8 hours per day, in California.) Salary non-exempt employees can have their paycheck docked when they work less than 8 hours per day.

    For a final determination on your specific situation, it would be a good idea for you to contact the California Department of Labor and Industry. And, thanks for reading the blog! ~ Caitlin

  5. Scott Beller Says:

    I am in California and the HR department has made it mandatory for a person to give 24hrs notice before a person is sick. (Example: If a person calls in sick on the day of their work, before the start of their shift, this is considered an “occurance”. After four occurances then discipline begins. We are given forty hours per year of sick time, yet it counts against us unless we use it as an appointment we can give 24 hour notice to. Is this legal in California? And if not, could you please give me the law code or number to reference when I go to HR with this information?

    Thank-you,

    J. Scott Beller

  6. Caitlin Says:

    Hi Scott! That’s an interesting question! For a complete answer, please post it on our forum for employees at http://www.laborlawtalk.com. And thanks for reading the blogs!~ Caitlin

  7. Nicollett Martinez Says:

    I started work at a museum on June 9th as Part Time. However, within 2 weeks I was working more than 30 hours per week (and as defined in the employee handbook) that constitutes full time status and eligible for benefits. When I pushed the subject of my hours I was classified as full time salaried on August 11th.

    I cannot take the 10 vacations days and 10 sick days I earn a year until I am “employed for 6 months”. Now they cannot tell me whether that means 6 months since the hire date, 6 months since I have worked 30 hours or 6 months from my official August status change.

    Yet, this week I was scheduled to work a 10 hour day on Friday (today) so I took an hour and half lunch on Tuesday to run and personal errand and my boss FREAKED out. Yelled at me in front of other staff and said I have taken off more time in the history of anyone here. (which of course is impossible)

    Now she wants all staff to punch a time clock – salaried and not. Do you have any comments about when my benefit time should start and whether she can make salaried employees punch a time clock?

    PS: important to note half the employees here are technically city employees and have different holidays off (6 more than museum employees do) and different benefits (more insurance than we do) and use a city timesheet,

  8. Caitlin Says:

    Hi Nicollett!
    The problem here is that you and the employer have different expectations. Full-time salaried status carries certain benefits — but it also carries certain obligations. Employers can establish whatever policies they like about full-time and part-time workers, and benefits like vacations and sick leave.
    At many places of employment, someone who works 30 hours per week would be considered part-time. However, you correctly felt that since the handbook qualifies those who work 30 hours per week as full-time, you met those criteria.

    When your employer reclassified you as a full-time salaried employee, they probably expected that you would begin to work at least 40 hours per week. From their point of view, you are taking off 10 hours per week (if you are still working 30 hours per week.) Since August 11 you have taken off 200+ hours, or more than 5 full weeks. Yes, that would probably qualify you as taking off more time than anybody in the history of the museum.
    There is no requirement that employers permit salaried exempt workers to take time off for personal business during the day. This is true, even if the employee was scheduled to work more than 8 hours per day or more than 40 hours per week. (Even non-exempt employees are expected to get permission before taking time off, in most cases.)

    Our best guess is that you will qualify for sick leave and vacation time either a)6 months after you became a full-time employee on Aug. 11 or b) 6 months after you began working 30 hours per week, on about June 23. But again, this is strictly a matter of company policy.

    It is perfectly legal for an employer to require salaried exempt or non-exempt employees to clock in and out. It is perfectly legal for an employer to require salaried exempt employees to work 40, 50 or 60 hours per week, without overtime. An employee who does not can be disciplined or terminated.

    The benefits that the state employees receive are entirely irrelevant. Although they work in your building, they have an entirely different employer.

    You and your supervisor need to sit down and have an open, honest discussion regarding her expectations for the full-time salaried employee in your job. Once you understand those expectations, you can make a decision if this job is a good fit for you or not. Frankly, if you don’t have that conversation, your long-term prospects with this employer don’t look good. You can also post more questions on our sister site at http://www.laborlawtalk.com. HTH,and thanks for reading the blog!~ Caitlin

  9. brian Says:

    In response to your free advise regarding New York transplants to the South. I work for a valet company and I realized that my supervisor would change my time sheet to prevent paying overtime. This is a normal practice in Florida and is clearly illegal but is accepted by many.

  10. Caitlin Says:

    Hi Brian! As you know, the practice of changing time cards is illegal. We also don’t think it is widespread, or even much more common in Florida than in other states. Under both the Florida and federal minimum wage, an employee must be paid for all the time the employee works. Unfortunately, Florida does not have a state agency that enforces this law — which be a problem. Legally, an employee can be disciplined or terminated for working unauthorized overtime, but they must be paid for it. We would suggest that you report your employer to the U.S. Department of Labor, Wage and Hour Division. Thanks for your comments! Caitlin

  11. shawn Says:

    I am a salary employee.I normally work 50 hours per week.If I miss time during a pay period ,they deduct the time from my vacation ,sick or p.t.o. time ,is that legal?

  12. Caitlin Says:

    Hi Shawn!

    Yes, this is legal. The employer is required to pay you for the entire day, if you do any work at all during that day. However, the employer is not required to offer any vacation, sick or PTO time. If the employer does, they can set the policies for the use of vacation, sick or PTO time. HTH, and thanks for reading! ~ Caitlin

  13. Laraine Rossy Says:

    I am a salaried employee working in the State of Florida for the same company 11 years. All of a sudden, our employer wants to pay us hourly, and send us home if things are slow. In the past years, I have given over 1000 hours of comp time for which I never collected a dime.
    Can she change us to hourley just like that?
    Thanks

  14. Caitlin Says:

    Hi Loraine! Yes, the employer can do this. You did not donate 1000 hours of comp time for nothing. Exempt employees are not entitled to comp time. You were paid your weekly salary, which was compensation for all of the hours you worked in the week.
    Any employer can change any worker to non-exempt at any time, as long as the change is permanent. Your employer, like many others, is taking measures to avoid laying people off. Many employees are not so lucky. HTH, and thanks for reading the blogs!~ Caitlin

  15. Jo Says:

    All employees at the private club where I work are being asked to take a 20% pay cut and a work week reduction to 32 hours. To accomplish this all salaried exempt employees are being told to punch a time clock starting April first continuing through October first. We have been told we will no longer be exempt. We have also been told that when the new fiscal year comes around (October 1) we will be put back on salary and expected to work any hours required. No time clock punches necessary and definitely no overtime pay. Is this legal?

  16. Caitlin Says:

    Hi Jo! It is legal for an employer at any time to make exempt employees into hourly employees. There is no law that any employee must be treated as exempt — even a CEO. If the employer switched salaried employees from exempt to non-exempt from one week to the next, and back, to avoid paying overtime, that would be illegal. But that is not the case here.
    It is probably legal for the employer to put the employees back on hourly status beginning October 1. This is assuming that the employees legitimately qualify as exempt, and that the change to exempt status is permanent.
    BTW, it is always legal for an employer to require exempt employees to punch a timeclock. And, the employer could lawfully reduce the exempt employees salaries by 20% across the board without any reduction in hours. HTH, and thanks for reading the blogs!~ Caitlin

  17. Jo Says:

    Thanks for the reply Caitlin. When we go back to salaried in October we will work OT hours (between 10 and 20 a week).
    As I understand what you are saying the board can flip flop back and forth between Salaried FT during busy season and Hourly FT during slow season.

    If that is so I wonder why they will bother with all of the hassle of changing everyones status when they can just tell us we are taking a 20% pay cut and leave it at that.

  18. Caitlin Says:

    Hi Jo! Yes and no. The employer cannot flip-flop back and forth between exempt and non-exempt from week to week, or every year from slow season to busy season. But they can “permanently” change the employees status to non-exempt and then “permanently” change the status back to exempt. As long as the “permanent” changes last 3 months or more, they are probably lawful.
    To be honest, the board is probably trying to do the right thing by exempt employees, by not simply cutting thier salaries (without any change in hours.) And of course, if they did permanently reduce salaries, they would be under no obligation to increase them again in October.
    The board is taking all of these actions to avoid laying off 20% of the employees — as are many employers, in these troubled times. But if you genuinely feel you would be better off, you can certainly suggest that exempt employees be given a salary reduction rather than changed to non-exempt status. HTH, and thanks for reading the blogs!~ Caitlin

  19. Jo Says:

    Caitlin-
    Thanks so much. By defining permanent you made this much easier to understand. I appreciate all of yur help.
    Jo

  20. Caitlin Says:

    Hi Jo! You’re welcome, and please feel free to post any addition questions you might have in the comments!~ Caitlin

  21. Kurt Says:

    Hi Caitlin, you have a really hot blog! My wife and I work FT exempt at a technology company. She had a very bad pregnancy and then took LWOP for 6 months after the birth of our son. She has no sick or regular accrued so whenever she is sick, she has to take LWOP, which has been a good bit this season. The company wants to switch her to FT non-exempt because they say that they will get in trouble for letting her take LWOP so much. As I read what you’ve posted here, it looks like the times they did not pay her a full 40 hours if she worked part of every day, they are in conflict with the statute. We aren’t talking a lot of hours here either, 8 hours or less out of 80 (2 wk pay periods). Am I right?

    Thanks for any help you can give. Kurt

  22. Caitlin Says:

    Hi Kurt! Thanks for the kind words on the blog! No, you’re not exactly right.
    Generally, an exempt employee who is ready, willing and able to work the entire week, and works any portion of it, must be paid his or her full weekly salary. However, your wife is not ready, willing and able to work the entire week when she takes time off due to illness. (We are going to assume that when she took time off for baby bonding, she took off the entire workweek.)
    Under federal law, when an employer has a system in place for paid sick leave, and the exempt employee exceeds the amount of sick leave available, then the employer can legitimately not pay the exempt worker, when he or she misses an entire day of work due to illness.
    However, you are correct if your wife worked part of every day, even a few minutes, then the employer must pay her for the entire day. She can be disciplined or terminated for not working the entire day, but must be paid her full daily salary. If you search our archives for “exempt”, there are a ton of articles we’ve posted on this topic.
    If the employer is granting her leave under FMLA, or ADA, then the leave may legitimately be unpaid — even if it is partial days.
    We will add, however, that the employer has been extremely generous about giving your wife time off without pay. This is not required under federal law, and most employers would have terminated her under these circumstances. So putting her on non-exempt status is entirely reasonable. Some states have family leave laws, but it appears that your wife has exceeded the amount of leave offered by even the most generous of these. HTH, and thanks for reading the blogs! ~ Caitlin

    Read more about the federal law at: http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17a_overview.pdf

  23. Kurt Says:

    Thanks Caitlin, but don’t be too hasty to give them credit for the unpaid time off. We’ve worked here for 13 years and they get her at a HUGE discount. We thought because they were flexible in return for our records of always delivering flawless products, even if it meant we had to work 80 hours a week. It was a shock when the guy in the business office accused her of violating the FMLA for taking LWOP. By the way, the extended LWOP she took after having the baby was during a period of time where the development contracts she works on were gapped. By her taking LWOP, they didn’t have to put her on overhead or lay off one of the junior developers (she has seniority over all but 2 of the 12 developers but probably makes less than the junior developers). I just checked with her supervisor and the LWOP they are complaining about amounts to 32 hours since July of 2008. Now I’m really irate. Thats just too trivial for me to let slide. If they can’t afford 32 hours of overhead after paying her less than the guy I hired to do menial IT work, they obviously can’t afford us.
    Anyway, thanks for the great information!

  24. Caitlin Says:

    Hi Kurt! Your points are well taken. It sounds like your wife took a lower salary with the unspoken assumption that she would be permitted to work fewer hours each week. Unfortunately, that is not the way that exempt status works.
    We said the company was generous primarily because most employers would have terminated her after 12 weeks off, rather than allowing time off for pregnancy complications plus 6 months of time off after the birth. (This may also depend upon the state family leave law.)
    From your description, it does appear that the company is being unreasonable by not paying her for the 32 hours. Part of their dilemma is that this situation sets a precedent for other exempt employees. If the company permits your wife to come and go as she pleases, working less than 40 hours per week, they have to permit other exempt employees to do the same — even if those employees are not pregnant or new parents. For example, if the lower-level IT “guy” you recently hired decided to take off at noon every Wednesday and Friday to play golf, they would still have to pay his full salary every week. Our suggestion would be, to sit down with HR and talk about how this can work for both parties from here on. It sounds like your wife may be willing to work part-time for her current salary. Being on non-exempt status may also be a good compromise.
    It sounds like the company values your work very highly, and has been extending special privliges to your wife, because of it. However, this cannot continue unless they change your wife to non-exempt status, or extend the same privliges to other non-exempt employees.
    It is also possible that your wife would have a case for wage discrimination based on sex, if she is being paid less than male employees for equivilant work. HTH, and thanks for reading the blogs!~ Caitlin

  25. lisa Says:

    I am a salary employee who is to work an 80hr week but on Thursdays I leave 1hr early to pick my children up for religious reasons. My company is telling me that I have to work the 80 or start to get paid just for the 78 hrs worked. Can they do this? By the way my leaving an hour early was approved prior to me being put on salary employment. Also how do i found out whether i am a exempt or non-exempt employee? I was originally hired as an hourly employee but after several yrs was told that i had to be changed to salary due to the current wage i was being paid. I agreed but was not given anything that showed me what being salary required.

  26. Caitlin Says:

    Hi lisa! There are a couple of issues here. Under federal law, an employer must grant reasonable accommodation for an employee’s sincerely held religious beliefs. Not doing so is discrimination based on religion. So if your religion required you to attend a service or class on Thursday nights, the employer would be required to accommodate that request — especially since it is only one hour per week. (Employers do not have to provide religious accommodation if it is an undue hardship.)

    However, it sounds like you are not taking time off for your religious observances — you are taking your children to their religious education class. Theoretically, you could arrange to have someone else drive your children to the class. So the “reasonable accommodation for religion” argument does not apply.

    It seems that the employer’s primary objection here is the number of hours that you work. Our suggestion is that you offer to work an additional hour or two during the week to compensate for leaving “early” on Thursdays.

    The employer has the right to establish an 80-hour “standard work week” for exempt employees and to discipline or terminate any employee who does not meet their standards.

    If you are not being paid overtime, you are being treated as an exempt employee. Federal regulations determine who is and is not an exempt employee under the FLSA, the Fair Labor Standards Act, based on the employee’s primary duties. Search our archives, and you will find a wealth of information on this topic.

    Under the FLSA, an exempt employee must be paid his or her usual daily wages, for any day in which the employee does any work at all — even if the employee works only a few minutes. If the employer shorts your weekly paycheck when you take an hour off from work, you are being treated as a non-exempt employee. If this happens, file a wage claim with the U.S. Department of Labor and you will be entitled to overtime for the past 3 years. HTH, and thanks for reading the blogs!~ Caitin

  27. kevin Says:

    I have been salary paid for the last 3 years. If I missed work because of illness my pay would remain the same. They never deducted any pay for sick days.we never had an official policy. But it was kind of like an unspoken rule.
    Missed 1 day last month and they deducted for 1 day without notice or warning. Just received my check minus 1 days pay. . Is this legal in California? Do I need to be notified? Thank you.

  28. Caitlin Says:

    Hi kevin! Actually, for once the California law closely parallels federal law. If an employer provides paid sick leave, and the employee exceeds the annual balance of paid sick leave, the exempt employee need not be paid when he or she misses a full day of work. If you worked at all that day, even a few minutes, from home, you are entitled to payment for that day.
    However, ironically, if the employer has no policy providing paid sick leave, the exempt employee must always be paid his or her full week’s salary (even if the employee is out sick for one or more days.)
    Check with your employer. Our guess is that there is a defined sick leave benefit at your place of employment, and that you have exceeded it for the year.
    By the way, an employer can discipline or terminate an employee for taking too much time off — even in California. HTH, and thanks for reading the blogs!~Caitlin

  29. kevin Says:

    Hi Caitlin,
    Thanks for the reply. Our employer does not have any sick leave policy. My attendance has been almost perfect and I maybe missed 2 or 3 days max in the 3 years I have worked here. No sick days were ever issued or discussed. The deductions came without warning. I always worked more than 40 hours per week.

    Am I still considered exempt status since my full salary was not paid?

  30. Caitlin Says:

    Hi kevin!
    If the employer has established a policy or practice of reducing your salary when you work less than 40 hours per week, that would mean you are not an exempt employee. In some cases, where this has happened, the US Department of Labor has required employers to go back 3 years and pay employees for any overtime worked.
    However, if the employer simply made a mistake on one paycheck, that would not necessarily change your status. The best thing to do is to tactfully discuss it with your supervisor or HR. The other alternative would be to file a wage complaint with the US or California department of labor. HTH, and thanks for reading the blogs!~ Caitlin

  31. Cristy Says:

    I am based in California. My question is whether an employee with less than 90 days in the company is entitled to a full day’s pay if she takes off after working for 4 hours on a certain day. The Operations Officer of the firm said she should not be docked because she worked 4 hours in the morning and neither should the time be deducted from her PTO.

    The employee is a receptionist who does not get overtime pay.

  32. Caitlin Says:

    Hi Cristy! Well, we will say that this is a very unusual way to handle it.
    The receptionist is eligible for overtime, so she is not an exempt employee. The overwhelming majority of companies would pay her only for the hours that she worked that day, or they would pay her for 8 hours and charge her for 4 hours of PTO.
    Either the Operations Officer has very lenient policies regarding sick leave for all employees, or he is showing favoritism towards the receptionist. It will be interesting to see if he treats other employees in the same way. HTH, and thanks for reading the blogs!~ Caitlin

  33. Mag Says:

    Hello Caitlin,
    I work in Florida full time and get paid by the hour (40 hours)
    We have to punch in and out every day. We do not have any sick day policy.
    When asked I was told it was discretion of my supervisor and the department.
    3 weeks ago I had to miss 2 days for being sick, I just received my paycheck and the 2 days were deducted
    from my paycheck without any notice.
    When I asked HR, I was told that he had deducted the days I was sick and to just talk to my supervisor.
    I also discovered they do it on a case by case, meaning some coworkers have been paid on their sick absence.
    Can a company do that and pay whoever they want when they are sick? I told my supervisor that this was not the way
    to do it and as a company they cannot do it on a case by case as this was discriminating and was told
    it was not as they did not have any sick policy written and pretty much could do what they want.
    Also, I do have a perfect record of attendance.
    Is this something a company can do?

  34. Caitlin Says:

    Hi Mag! This is a grey area, but depending upon how the company does it, it may be legal.
    First of all, they did not “deduct” anything from your paycheck. Hourly employees are paid for the hours they work. Generally, no work = no pay.
    There is no law that any company must offer paid sick leave to hourly employees (also called non-exempt employees.) Many companies choose to, but that is not the law.
    Often when someone says “it’s up to your supervisor” what they really mean is “the answer is no, but I don’t want to be the person to tell you the bad news.”

    By federal law, if the employer has no paid sick leave policy in place, exempt (or salaried) employees must be paid for sick days. But that does not apply to you.

    It sounds like in this case the employer picks and chooses when sick leave will be paid, on a case-by-case basis. This is not a great management technique, but it is illegal only if the company is practicing illegal discrimination. For example, if all Hispanic employees were paid when they were out sick, and no other employees were, that would illegal discrimination based on race, color or national ancestry.

    Simply paying one employee because they like her, or think she does a good job, and not paying another employee is not illegal. It may be poor management, but it is not illegal.

    You can probably assume that this company will never pay you for any sick days that you take. HTH, and thanks for reading the blogs!~ Caitlin

  35. Karen Says:

    Hi Caitlin:

    You said that it is legal to deduct sick, vacation time to an exempt employee if they work for 2 hours and go home for the rest of the day. Could you tell me where I can find that in the Federal Labor Standards Act? We are in Florida. Thank you! You are being very helpful!

  36. Caitlin Says:

    Hi Karen! This is lawful because its a topic not covered by the FLSA at all. The FLSA requires that an exempt employee who works a few hours be paid for the full day. However, neither the FLSA nor any other federal law prohibits the employer from deducting paid vacation or sick time in Florida. HTH, and thanks for reading the blogs!~ Caitlin

  37. Norma Says:

    I just wanted to comment that you appear to be pro employer in a lot of your replies. You are quick to give credit to the employer and make several assumptions that favor the employer without having complete information. Just sometning to keep in mind if you are supposed to be impartial.

  38. Steve Says:

    Hi Caitlin:

    Just need a clarification. If an employer suspends their sick policy, do they need to pay an exempt employee if they miss a day of work? Would the situation change if that employee was working an average of 6-8 hours overtime per week?

    Thanks.

  39. Caitlin Says:

    Hi Steve! An employer with a bona fide paid sick leave policy need not pay exempt employees for excess absences. But when the employer eliminates paid sick leave, they must pay exempt workers anyway. HTH, and thanks for reading the blogs!~ Caitlin

  40. Doug Says:

    Our company recently started using a payroll company and the employees had to sign and agree to the days of vaction that each employee had. Nine months after this all employees were informed that a mistake and been made in the conversion proccess and the took 3 or more vacation days for every employee in the company. Is this allowed?

  41. Caitlin Says:

    Hi Doug! This is allowed. The employer has the right to correct any clerical errors they or the the payroll company makes, in most states. HTH, and thanks for reading the blogs!~ Caitlin

  42. danielle Says:

    i am an salary employee and have no beneifts to where i work
    my mother past away and i took the days off to take care of the funeral arragments for a total of 12 days
    i had problems with the arrangments so it took some time – i did not finish my 2 dys for the completion of my two weeks but i got paid for the two days – my question for the state of texas am i going to recieve any pay for the other 10 dys missed for being a salary employee – is it possible for my employer to with hold a check

  43. Caitlin Says:

    Hi danielle! You received all the pay you were entitled to. An employer need not pay an exempt employee who takes off one full day or more for personal business. Just so you know, the majority of employers would have fired you. Even when an employer grants berevement leave, the standard is usually 3 days. HTH, and thanks for reading the blogs!~Caitlin

  44. patricia Says:

    I have been a salaried employee for almost 2 years, however, a few days ago I was asked to punch in and out. My scheduled is for 40 hours of work, can the employer change my scheduled to work more than 45 hours and do I get paid overtime for it, even if I am still paid as salary not hourly? Also I am the only salaried employee asked to punch in and out, how come the other salaried employees are not asked to do the same? Legal or not?

  45. Caitlin Says:

    Hi patricia! Please post your comment on our sister site at blog.laborlawcenter.com so our HR advisors can give you a full answer. HTH, and thanks for reading the blogs!~ Caitlin

  46. Phylis Vadala Says:

    Nice Website. You should think more about RSS Feeds as a traffic source. They bring me a nice bit of traffic.

  47. Caitlin Says:

    You are very welcome, Phylis! Check back often– we are constantly posting new info!~ Caitlin

  48. Magic Says:

    I am a salaried employee ($500+/wk) and work on commision in outside sales in the State of Florida. I work 40+ hours per week. I have been given 3 sick days after 3 months (for a whole year, yeah I know, its sucks!). As a salaried employee, if I am sick, can my employer dock my pay for a whole day once my sick days run out?? Also, if I go home after 1/2 a day, is it legal to dock my pay for the seond 1/2 of my day?
    thanks!
    Magic

  49. Sheri Says:

    My company is located in New York. It has a policy that once an employee has exhausted his/her sick time, the employee will not be paid for any sick days and he/she can not use any vacation time remaining for this unpaid sick time. The reason for this is to stop employees from calling in sick thus avoiding unplanned absences which disrupt work flow.
    Is this legal – to not pay for a sick day if the employee has vacation days remaining?
    Thanks,
    Sheri

  50. Caitlin Says:

    Hi Sheri! Yes, this is legal. In New York as in most states, the employer can require that vacation days be approved in advance, and can deny an employee the right to use vacation when it is inconvenient for the employer. Many employers have this poicy. HTH, and thanks for reading the blogs!~ Caitlin

  51. Liz Says:

    I work in Ill. I have a question regarding sick time. is an employeer required to tell you how many sick days you have per year. I have been working at the same company for over 9 years & i am non-exempt salary. I was sick for three weeks and one week was already scheduled as vacation. when returning to work the company informed that I only have 10 sick days per year and i had already used 9 and they were only going to pay for 1 day. I asked to see a policy or something where is says I only have 10 days and they could not provide it. Is this legal? does an employee need to know how many sick days they have??

    thanks…
    liz

  52. Caitlin Says:

    Hi Liz! Unfortunately, no. There is no law that an employer must offer paid sick days to workers. If there is no sick leave policy, employees should assume that they will not be paid for sick days.
    There is also no law in Illinois or most states that company policies must be in writing. Offering 10 paid sick days per year is actually fairly generous. HTH, and thanks for reading the blogs!~ Caitlin

  53. eddie whitley Says:

    i am a salary employee and have been for 7 years this is the first time i had to take a full week off for sickness and i had 2 doctors excuses for these days now my manager is trying to make me use my short term dissability instead of my sick time and my pto time is he able to do this by law

  54. Caitlin Says:

    Hi eddie! Yes, he may be able to do this. When an exempt employee does no work at all during the payroll week, he need not be paid. If you qualify for short term disability benefits, it is reasonable for the employer to require you to use them. Some employers do allow workers to use all sick and vacation time before filing STD, but that is a matter of company policy. HTH, and thanks for reading the blogs!~ Caitlin

  55. eddie whitley Says:

    I would like to ask one more question Caitlin. In Jan.2011 we just had one employee who was the same title as I. He was out sick for a week like I was but he was able to use his sick and vacation time to cover his week off sick. Would this be concedured a unfair act toward the employee from the employer?

  56. Caitlin Says:

    Hi again eddie! If other employees have been allowed to use sick leave or vacation time when they missed a week of work, this might very well be illegal under federal law. Any policy that creates different working conditions for employees in a protected group, is illegal discrimination. If the other employees were of a different race, color, sex, religion, or national ancestry, this may be illegal discrimination. If you are over 40 and the other employees were under 40, that may be illegal discrimination. HTH, and thanks for reading the blogs!~ Caitlin

  57. bill Says:

    I have been at my company for four years and I am a salaried employee working 50 to 60 hrs a week I was sick two days and I had to use vacation time and was told salaried employees do not get sick time is this right

  58. bill Says:

    I have been at my company for four years and I am a salaried employee working 50 to 60 hrs a week I was sick two days and I had to use vacation time and was told salaried employees do not get sick time is this right i live in ohio

  59. Caitlin Says:

    Hi bill! No, this is not correct. In fact, under the federal FLSA, an employer who offers no paid sick leave must always pay exempt employees their full salary when they miss work due to illness. You can file a complaint with the US Department of Labor at http://www.dol.gov. HTH, and thanks for reading the blogs!~ Caitlin

  60. Caitlin Says:

    Hi bill! Your employer will probably argue that your vacation time is actually PTO (or Paid Time Off) a combination of sick leave and vacation. However, if it is not, you are entitled to payment for any days missed due to illness, if you are an exempt salaried employee. HTH, and thanks for reading the blogs!~ Caitlin

  61. Glenn smith Says:

    I work in the medical profession in Florida. For years we have been salaried plus overtime for any hours worked after an 80 hour two week pay period. Recently my group changed the overtime structure and now claim that any sick time or vacation time taken in a pay period will be deducted from our overtime. For example, I can work 80 hours the first week and take 40 hours vacation the 2nd week and they are claiming that I am not entitled to any overtime because the 40 hours vacation time will be deducted and is not considered overtime hours. Is this legal? Am I not be penalized for using one of my paid benefits (vacation)? Also, is it legal to calculate overtime after an 80 hour two week period or should I be getting overtime after a 40 hour week? Thank you for your advice

  62. Caitlin Says:

    Hi Glenn! Yes, this is all legal and standard procedure. Under the federal FLSA, some employees in the healthcare industry can be paid overtime after 80 hours in a two-week payroll period, rather than after 40 hours in the payroll week.

    Under the federal FLSA, an employee is entitled to overtime only for time *worked*. Since vacation pay, holiday pay and sick pay are not for time worked, they do not count when calculating overtime. Example: John works 80 hours this payroll period and uses 16 hours of vacation pay. He can be paid 96 hours at his regular rate because he did not *work* more than 80 hours in the payroll week. The overwhelming majority of employers calculate overtime this way.

    We are not sure where you got the idea that an employee could not be penalized for using vacation. Many, many employees earn less on vacation then when they work. For example, a cocktail waitress who earns $150 per night in tips, earns only the minimum wage while she is on vacation. An employee who usually works 65 hours per week, loses 25 hours of overtime when on vacation. He or she is paid only for 40 hours. So this is very common. HTH, and thanks for reading the blogs!~ Caitlin

  63. Ronda Says:

    A salaried employee in the state of Washington and of a privately owned company leaves 2 hours early for a doctors appointment but has no sick time available. The employee is having 1/2 day unpaid deducted from their paycheck.Employee handbook states time off can only be taken in 1/2 day or full day increments. Is this within the state and federal guidelines or is the company required to pay for the full day even if the employee has used all of their sick & vacation days?

  64. Caitlin Says:

    Hi Ronda! This is probably illegal under Washington or federal law, or both.

    A salaried employe can be either exempt or non-exempt, based on job duties. Under the federal FLSA, an exempt employee is entitled to his or her full salary for the week, regardless of the number of hours worked. An exempt employee who works any time at all during the day, even 5 minutes, is entitled to payment of his or her full salary for the day. You can discipline or terminate the employee for leaving work early, but the employee must still be paid for the day. State laws vary, but the Washington law is similar to the federal law.

    A non-exempt employee is basically an hourly employee. Non-exempt employees are entitled to payment for all hours worked. In this case, the employee worked 6 hours but is only being paid for 4 hours. That is also a violation of the federal FLSA, as well as Washington minimum wage laws. A non-exempt salaried employee is not entitled to her full salary for the day, but it must be prorated to pay her for the 6 hours worked.

    In either of these scenarios, the rule about taking a half-day off for sick leave is irrelevant, because the employee is not using sick leave.

    There is an exception if the employee is taking time off for the doctors appointment under FMLA or ADA. Time off under these laws can be unpaid, even for an exempt employee. If the employee is taking time off under FMLA, (for example, if she is pregnant and taking time off for a prenatal appointment) then her daily salary could be prorated, and she could be paid 6/8 of her usual salary for the day.

    However, the 2009 FMLA regulations specifically prohibit an employer from counting time worked as FMLA. So, the employer cannot count this as half a day of FMLA, because the employee worked 3/4 of the day. if company policy does not permit the employer to count hours of FMLA or absence, then this must be counted as a full day of work for the employee. An employee taking time off under FMLA or ADA cannot be disciplined or terminated for taking the time off. HTH, and thanks for reading the blogs!~ Caitlin

  65. Paula Says:

    Hi,
    I have been a salaried general manager for over a year with a restaurant in Florida. I had to go into the hospital as I was having heart flutters. I have no sick day policy where I work. I work 60 hours per week, some weeks more some weeks slightly less. I rarely have my days off actually off. How long from the date that I went into the hospital until I go back to work will the employer be required to pay me? I have missed one weeks work
    Thanks,
    Paula

  66. Caitlin Says:

    Hi Paula! This is probably not the news you want to hear. The answer depends upon whether the employer is covered by FMLA or not.
    The federal Family and Medical Leave Act applies to employers with 50 or more workers within 75 miles of your restaurant. The law allows employees to take up to 12 weeks of unpaid, job-protected leave for a serious health condition. If you were hospitalized overnight, you have a serious health condtion. The good news is that FMLA protects your job, if you return in 12 weeks or less. The bad news is that FMLA is unpaid, even for salaried exempt employees. This means that the employer has to pay you only for the time you worked.
    If you are not covered by FMLA, because your employer has no bona fide paid sick leave policy, they have to pay you in full for any day that you miss due to illness. They also have to pay your full salary for any day in which you work a portion of the day — even 5 minutes, even from home or the hospital, checking email. However, the employer is not required to pay you for any payroll week in which you perform no work at all. If you worked Monday, the employer must pay your full salary for that payroll week. However, if you do not work the following payroll week, the employer is not required to pay you anything at all. Even worse, if you are not covered by FMLA and you miss a few weeks of work, the employer can fire you for absenteeism — even if you have a doctors excuse. This is a complex issue, so feel free to post any additional questions you have. HTH, and thanks for reading the blogs!~ Caitlin

  67. Victoria Says:

    I have a question concerning my salaried employment.
    I work ot on a regular basis for my salaried position. When I take a day off they make me charge it to my leave even though I have worked more than enough time to constitute a full work week. In addition we have to work 6 hours in a day preapproved by upper management in order to recieve a full days pay or we are docked. Also If we miss time after we have used our leave time they do not pay us and they do not accure our leave time for those hours. In addition they are now requiring us to do alot of travel and we are not compensated but .35 a mile which does not cover the cost of gas. When we complain they tell us to take the difference off our taxes. They last thing they do is we fill out our time sheets and say I worked 91 hours in a two week pay period, on our summary payroll sheet I am only allowed to put 80 hours or they will not process it.Is any of these practices illegal. As a salaried employee am I just stuck being treated this way.

  68. Jim Says:

    Love you site. I have a question for you. I work in HR and was under the impression here in Nebraska that if you come to work and even work a partial day, go home sick you get paid for the full day. My new supervisor, has me using my PTO time. Albeit I did have some PTO but now that has run out, and I am afraid to get sick before my new PTO kicks in as I will be docked? I am salaried by the way and here for 1 year. Thank you for any help. Regards, Jim

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