salaried employees and missed days: when do they have to be paid?

by Alison Green on July 11, 2011

I’m very excited to present this guest post from Donna Ballman, the fantastic employment attorney who writes the great Screw You Guys, I’m Going Home blog, where she talks about legal issues in the workplace. If you don’t already subscribe to Donna’s blog, you should do so right now! 

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Salaried Employees and Missed Days: When Do They Have To Be Paid?
by Donna Ballman

Alison asked me to answer a question from her readers. When I agreed, she asked you to post your questions for me and, boy, did we get lots of great ones. The question that was chosen for me to answer is an area that both employers and employees find confusing. I’ll try to help cut through the confusion and misinformation by answering this great question:

How about an article about “salaried employees”?  For example, if I am a salaried employee is my company obligated to pay me for things such as snow days (office closed) or jury duty?  What are the pros and cons for the employee to be salary as opposed to hourly?  What about “sick days”? If the company doesn’t have “sick days,” is a salaried employee required to use a vacation day if they are “sick”?

If you are salaried, it doesn’t necessarily mean you are an “exempt” employee, meaning you are exempt from the overtime requirements of the Fair Labor Standards Act. Some of the answers to these questions will depend on whether or not you are exempt. Most of these questions are addressed in one federal regulation.

I’ll address the issues in order.

Natural disasters/office closings: If the employee is exempt and they worked any portion of the work week, they have to be paid their entire salary, whether or not the office is closed for a natural disaster such as snow, hurricane, or flood. Further, the regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” This would include natural disasters, so if the employee is able to work after a natural disaster, then they need to be paid even if they didn’t work any portion of the week. If the employee is non-exempt, then they don’t need to be paid for the time the office is closed. However, if you take deductions from a non-exempt salaried employee it may affect the way overtime is calculated. I’ll explain below.

Jury duty: See answer above. However, some states do require payment for time taken as jury duty. Alabama, Connecticut, Colorado, Massachusetts and New York appear to have requirements that all or part of the juror’s wages be paid during jury duty. The regulation states: “While an employer cannot make deductions from pay for absences of an exempt employee occasioned by jury duty, attendance as a witness or temporary military leave, the employer can offset any amounts received by an employee as jury fees, witness fees or military pay for a particular week against the salary due for that particular week without loss of the exemption.”

Sick time: You can deduct for full-day absences if you have a policy for doing so. You can also apply the employee’s sick leave/PTO time if they have any. The regulation states:

Deductions from pay may be made for absences of one or more full days occasioned by sickness or disability (including work-related accidents) if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability. The employer is not required to pay any portion of the employee’s salary for full-day absences for which the employee receives compensation under the plan, policy or practice. Deductions for such full-day absences also may be made before the employee has qualified under the plan, policy or practice, and after the employee has exhausted the leave allowance thereunder. Thus, for example, if an employer maintains a short-term disability insurance plan providing salary replacement for 12 weeks starting on the fourth day of absence, the employer may make deductions from pay for the three days of absence before the employee qualifies for benefits under the plan; for the twelve weeks in which the employee receives salary replacement benefits under the plan; and for absences after the employee has exhausted the 12 weeks of salary replacement benefits. Similarly, an employer may make deductions from pay for absences of one or more full days if salary replacement benefits are provided under a State disability insurance law or under a State workers’ compensation law.

Personal leave: Another exception to the requirement that the employee be paid for the entire week if they work any of it is taking personal leave other than for sickness or disability. The regulations state: “Deductions from pay may be made when an exempt employee is absent from work for one or more full days for personal reasons, other than sickness or disability. Thus, if an employee is absent for two full days to handle personal affairs, the employee’s salaried status will not be affected if deductions are made from the salary for two full-day absences. However, if an exempt employee is absent for one and a half days for personal reasons, the employer can deduct only for the one full-day absence.”

Advantages to salary: Employers like salary because they know exactly what their expenses will be week to week. If an employee is exempt, then paying them salary means you don’t have to pay them overtime. However, some also like to declare non-exempt employees as “salaried” and fail to pay them overtime. That’s bad. Really bad.

Consequences of getting it wrong: If you make improper deductions from a salaried employee, you might lose the overtime exemption. If you fail to pay overtime to someone who is entitled to it, you can end up paying double the amount owed, plus attorney’s fees. And everyone who wasn’t paid in your entire workforce can be joined into one hairy mess of a lawsuit that can be very costly. Don’t screw this up. My recommendation is that if you don’t have a good handle on exempt vs. non-exempt, either get good legal advice from a management side attorney or pay hourly and keep excellent records.

The Department of Labor has quite a few fact sheets that cover many issues like this one on the Fair Labor Standards Act and the other laws they cover. When in doubt, check to see if your issue is addressed.

Thanks for inviting me to blog on this important issue. I hope my answer helped. I’ll try to answer some more questions on my blog, Screw You Guys, I’m Going Home. Keep those questions coming. You can ask here, or in the comments section of my blog.

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{ 194 comments }

{ 194 comments… read them below }

  1. Anonymous*

    Donna, thank you for sharing this with us! Its wonderful to have this info gathered all in one place by someone who knows what they are talking about. Thanks and I’ll be visiting your blog next!

  2. Anonymous*

    As an employee who has encountered the jury duty question in my own life, I was interested in hearing about my rights. However, I didn’t understand the answer given by the author. Maybe I am dumb…

    1. Anonymous*

      If you’re daily pay is $100, and you get $20 for being on jury duty, your employer can pay you $100-20 = $80. That way, you’re not “double dipping” and getting both your salary and the per diem.

  3. V.*

    i’ve never heard of anyone i know who has a salaried position also getting paid overtime, when required.

    some get paid straight time but it depends on the contract terms with the client.

    1. Laura*

      That’s probably because people often use “exempt” and “salaried” interchangeably, when they aren’t necessarily. The problem comes about when non-exempt, salaried people (which I have never run into either) don’t get the overtime they deserve because someone thought that just changing a person to salary means they don’t get overtime pay

      1. V.*

        right. so many times I have heard the phrase, “you don’t get overtime if you are salaried.”

        it pisses me off.

    2. Mike C.*

      I’m non-exempt salaried, and all this means is that I’m paid hourly but I work a regular schedule. This is different from someone that works in retail or food who may have a unique schedule every week.

  4. SME*

    I think my company has us all on the books as non-exempt, salaried. I get the same paycheck every week, but I’m not allowed to get overtime, so anytime I work extra, at a later date I just get unofficial time off that doesn’t get put on the books.

    1. SME*

      Oh, but look! Based on the fact sheet above, because I’m an admin, it doesn’t matter, I don’t get overtime protection. Huh.

  5. Donna Ballman*

    Anonymous, if you’re salaried exempt you have to be paid while doing jury duty if you worked any part of that week. In some states, you have to be paid, period.

    SME, the reason your “comp time” is off the books is it’s illegal. If you’re non-exempt they have to pay overtime and can’t book it as time they owe you. If you’re exempt, then comp time should be okay. Most people classified as administrative exempt probably really aren’t exempt though based on the duties they perform. Few have that level of discretion and responsibility.

  6. Frank*

    Exempt employees.. ugh. I am one (under the “Computer Professional” one) and I hate it. Totally used to an employer’s advantage.

    1. Jamie*

      As a fellow exempt “computer professional” I really think employers should use caution in loading up on OT. It would really help if there was a common practice for salaried IT people, and others whose duties require being on call off hours.

      There is a difference in being asked to come in a little early or stay a little late during crunch time which can happen for all employees as opposed to being required to head into work in the middle of the night, or weekends, or holidays – at a moment’s notice. There should be a structure in place to account for that.

      I can understand not wanting to keep in house IT hourly – because many of us do fit the exempt criteria and because not everyone has bosses who truly understand the nature of our jobs so vetting the necessity of OT can be problematic.

      It seems our only alternative can be a salary high enough so the OT doesn’t breed resentment…and that’s hard to come by.

      1. Frank*

        Jamie,

        Unfortunately, there is a structure.. it’s “do it or else” at most places. :(

          1. Mike C.*

            I don’t want to start a fight here because I understand that the topic is a political hotbed, but forming some sort of professional group/union/guild/etc would go a long way in improving the working conditions many computer professionals endure.

            I mean christ, many of you guys don’t get basic things like overtime and are on call at crazy hours. I hear crazy horror stories about constant crunch times and being perma-temped is nuts. It’s about times you folks had some power to fight back.

            1. Frank*

              Mike,

              It’s 2011. Most people can’t be bothered to cook dinner for their families, let alone form a union.

              1. Mike C.*

                Maybe if they didn’t have to work a ton of unpaid overtime they might find the energy to do so . ;)

  7. Jamie*

    This has made me really curious as to the average work week for exempt personnel.

    We’ve all seen people who work the system as exempt and rarely put in a full forty – but I would imagine most of the time it works out for the benefit of the employer.

    Nothing wrong with working a longer week – I’m just curious. Does anyone know of a good link to stats on this? (Figured I’d ask before I made a note to myself to google it tonight.)

  8. Anonymous*

    I am an exempt (and salaried) employee. Our company makes us take a PTO day if the office is closed (due to snow, power outage, etc.) Is that legal? (We still get paid, but we have to use one of our precious few PTO days…)

    1. Frank*

      Unfortunately, from a quick Google search, the answer is probably yes it is legal, but IANAL!

    2. Anonymous*

      Yes, it’s legal. On the other hand, if you ran out of PTO, you’d still have to be paid and could not be docked pay. But, then you’d probably get talked to about poor planning of your PTO time.

      1. Anonymous*

        I’d be pretty upset if I got lectured about poor planning of PTO time. It shouldn’t be my responsibility to plan for snowstorms, seeing as I’ve got no control over the weather…

    3. Bob G*

      I read the original post to say that on a snow day an exempt salaried employee MUST be paid their full salary if they are able to work…..so I took that to mean that you should not be required to use any PTO. Did I interpret that wrong?

      1. Donna Ballman*

        Bob, they can’t dock pay from exempt employees for snow days, but they absolutely can make exempt employees use PTO. Not fair, but it’s the law.

  9. Anonymous*

    I apologize if I missed this while reading this blog entry, but I notice the statement “The regulation states” several times. What regulations are we speaking of? Are we talking Fair Labor and Standards, some compilation of state regulations and agencies?

  10. Anonymous*

    I understand the full day pay , but what about an employee that leaves after 5 hours of work ? He has sick time and vacation but since he worked over the 4 hours he believes he does not have to use them. I’ve been all ove rthe DOL and can’t get a clear answer.

    Can I make him use his vacation to cover the hours missed at weeks end? Or am I stuck with a 5 hours a week employee??

  11. Anonymous*

    Our company policy is to pay our exempt employees for every hour they work using straight time overtime. A handful of us have been asked to work extra hours on a project and not put the overtime on our timesheet. Is this allowed? I understand that exempt employees don’t have to receive compensation beyond 40 hours, but if it is our company policy to do so, and there are 20000 other employees who are not asked to give up that benefit, is that legal?

    1. Ask a Manager* Post author

      If you have a contract that spells out that you’ll be paid for each hour of work, this would violate that contract. But otherwise, I think this is legal … assuming you truly are exempt (by the govt’s definition, not just your employer’s). However, I’d want to know why you’re being asked to do it.

  12. Anonymous*

    I am an exempt salaried employee. I just had surgery and workmens comp tells my employer not to allow me to work until doctor says that I would have no restrictions. Question I have is employer required to pay me my salary during my recovery time?

  13. Anonymous*

    I am an exempt salaried employee, but have a contract that states that I get comp time and my employer just amended my contract to say that I may have comp time or overtime. However someone told my employer that I am not eligible for this, but I believe I am since my contract states so. Am I correct?

    1. Ask a Manager* Post author

      If you have a contract that allows it, then the contract would be what’s in effect. I suspect that whoever told your employer that you’re not eligible for overtime is confused about the law — exempt employees don’t HAVE to get paid overtime (non-exempt employees do), but that doesn’t mean that the employer can’t decide to give it to them anyway. So your contract is perfectly enforceable.

  14. Andrew*

    If I’m exempt and salaried, I make 40 hrs by Thursday and ask for Friday off, is it legal for my company to require that I give up a vacation day? What if we have a two week pay period that has to add up to 80 or more (ex: 45 hrs week 1 and 35 week 2)? Does that count as comp time?

      1. Amy*

        Hi –
        Could you explain this a little? From reading the statute above, it seems like they could dock pay – “Deductions from pay may be made when an exempt employee is absent from work for one or more full days for personal reasons, other than sickness or disability.” If they are salaried and exempt, why does it matter if they’ve already worked 40 hours?
        Or did you mean they have to use any PTO or vacation pay first, but if there is none, they could dock pay?

  15. Frustrated*

    I think I know the answer to this but would like it clarified to be sure; I am an exempt salaried employee, and a few years ago my employer began closing the office the day after Thanksgiving and refused to pay the hourly and salaried (exempt and non-exempt) employees. Employees were given the option of using a vacation/personal day if they had days available, otherwise the employees were not paid for the day. Is this accurate and legal for the employer to do?

    1. Ask a Manager* Post author

      No! The Fair Labor Standards Act requires that exempt employees be paid their full salary for the week if they worked any portion of that week. If your employer was closing for a full week, they would not need to pay you for that week. But one day? They have to give you your regular check.

      However, for non-exempt employees, they can indeed subtract that day from their pay. (Whether they should or not is a different discussion.)

  16. dimples*

    I Work for a doctors clínic and it was damaged by rain very bad so we were told that if we wanted to get paid we had to clean up and i mean taking parts of ceiling off drying the floors we have even been doing tape and flow and we are just receptionists. and. medical assistants

  17. Anonymous*

    If i am a salry employee, and i am sick and dont make it to work. do I still get paid for those days, or am I docked that pay for the week?

  18. Curious*

    Can you work on an unpaid internship while you are on a paid sick leave from your full time job? somebody I know took 2 months of sick leave (with a doctor’s note) to finish his internship, is that legal?
    Thanks

  19. Anonymous*

    I am a salary employee who works 36 hours a week. I requested 4 hours of vacation instead of taking 4 the company took 8 stating I am to work 40 hours when its actually 36.

  20. Anonymous*

    I notice in the ‘sick leave’ section you repeatedly specify ‘full-day absences.’ How would a partial-day absence related to a medical problem fit into this, and can I be required to use accrued PTO for such an absence?

  21. Anonymous*

    Hi, Im a exempt salary manager and 90% of the companys managers take memorial day off but my boss tells me I have to work. Is that illegal?

  22. Bex*

    My husband is an exempt employee, and his employers require him to take a PTO day or deduct a day’s pay for his upcoming jury duty. From what I have read, the company can deduct the $15 he receives from the county for the jury duty, but can’t penalize him PTO or compensation. Is this correct? I have contacted my local wages and hours office for confirmation, but haven’t heard back yet.

      1. Bex*

        Our state and county do not require employers to compensate for jury duty. But as an exempt employee, if they deduct from his pay for one day of required jury duty, doesn’t that risk changing his status to non-exempt?

  23. melissa*

    I am an exempt employee who works 44 hours a week. I rarely take any time off, work though my lunch, and rarely take a 15 min break.
    Last week i took the day off so i could take my child to children’s hospital for some xrays. I let them know i was taking the day off weeks in advance but when i got my pay check it was missing a days pay! Is that legal in Michigan? I have worked for the company for 9 years i used to get paid for the days off but the past 3 I haven’t. I receive 2 weeks paid vacation but company does not have PTO or even sick days. So when i have to go to a doc appt with my child i have to use a vacation day. So if and when i decide to take a vacation i dont have any time. Should my ot go into an account and be concidered when i take a day off?

  24. melissa*

    That’s weird because whenever i take a day off its to go to the doc with one of my kids. Because of that i only have 2 vacations left for the year. LOOKS like no vacation for me. Should my OT go into a bank type thing so when i go to the doc it will take from that and not my vacation? Who do i contact to get this corrected? HR already said they wont do anything for me.

    1. Jamie*

      Alison is right that they can’t dock your pay for a day if you worked at any point in the pay cycle (and are exempt.)

      However, they can absolutely dock vacation time or PTO – they just can’t dock your pay if that is used up and/or goes negative.

      The idea of OT going into some kind of comp bank is something most exempt employees dream about, but it’s largely apocryphal. Many companies have stipulations for what is considered comp time and typically it doesn’t include run of the mill OT. I would also bet money they will not do it for you, if it’s not their policy.

      I would be angry about the docked day also, because it’s illegal, but I would advise you to stay away from conflating that with the other issues (vacation, etc) which is not illegal. I can see HR not doing anything regarding the other issues, but I don’t see how they are skirting the labor law on docking the day.

  25. melissa*

    But if i take the day off for personal( no sitter) they would be able to doc me? Is there some kind of guide lines that states pto and no pto?

    Thank you so MUCH for you help! Im glad there is people out there to help people in my situation.

    1. Jamie*

      FSLA doesn’t require that employers provide any PTO, vacation, or sick time. Most just do because it’s good business – but they don’t have to.

      http://www.dol.gov is the Department of Labor website and it’s a great resource for exploring what is and isn’t mandated.

      Individual states may have requirements for PTO, etc. – I don’t know the specifics on individual states.

  26. melissa*

    i just asked today if i can be converted to an hourly employee that way i can get paid ot, if they dont want to pay it then work a 40 hour work week. He basically said that is not going to happen. I just feel like im getting the raw end of the deal. I would rather get paid ot and then take the day off unpaid and save my vacation days for vacation. My company does not offer sick days, personal days or any other sort of days off other then Vacation. Any opinions? I just hate being taken advantage of. I feel that i am a great asset to the company and honestly i dont know what the company would do with out me. I dont understand how one year they will pay you without using vacation day and then the next year they wont.

    2. Jamie*

      I understand why you’re upset – and want to reiterate that they were totally wrong in docking your pay – but companies rarely change their policy to accommodate one employee.

      Most exempt employees work more than 40 hours per week – putting everyone hourly would be a financial cost a lot of companies don’t want to incur.

      I hope when you are talking to them it’s conversational, because I’ve seen people plant their flags over this issue before and it never ends well for the employee. There is a huge difference between what an employee perceives as ‘fair’ and what is ‘legal.’

      If they docked your pay illegally, you have a legitimate issue. The other stuff isn’t an entitlement – and if they in the past they didn’t dock vacation time for days off, that was a gift rather than something they are obligated to continue. Like if a company used to give bonuses and now they don’t – unless it’s in the handbook or employment contract you can’t demand they continue to do these things at their discretion.

  27. melissa*

    They have done it several times to me over the years! Should i not say anything until i quite or get fired then call the labor board? Then will i get back what was taken from me? Do you know how many years they will go back?

  28. melissa*

    ok, so lets say i play there game. Now that i dont have vacation time left because i used them on doc appts can i take a Thurs, Fri, Mon and Tues off for vacation. Would they have to legally pay me for my time off because im an “exempt” employee?

      1. Jamie*

        This. Also, every place I’ve worked vacation days need to be approved – which doesn’t happen if you have no time on the books.

        So if you take those days you can be fired…in some circumstances not showing up when vacation has not been approved could be considered a voluntary quit and makes unemployment a really hard sell.

        That is a very dangerous game if you care about keeping your job.

  29. melissa*

    by accrued you mean vacation time? But if they done fire me they are legally obligated to pay me for a full week because i have worked 3 days in each week? Would it matter if its used for vacation?

    1. Ask a Manager* Post author

      No, in most states they don’t have to pay you for a full week if it’s your last week of employment.

      Look, I think you’re seeing this as very unusual or unfair, when in fact this is pretty normal. This is how most companies work. I really don’t recommend trying to find a way to game the system or screw them over or you’ll end up getting fired. This is simply how most employers structure things. If you don’t like it, you can try to find a job with different policies, but this is pretty typical.

  30. melissa*

    Im only asking because my boss has approved my vacation in July and i have no vacation time. He knows i dont have any but still approved it! He did not say i would or i wouldnt get paid but i know i wont.

    1. Ask a Manager* Post author

      You’re expected to manage your own vacation time. The fact that he approved it doesn’t mean that you can take it if you don’t have the time saved up. I suggest that you ask your employer about this before you take the time off.

  31. melissa*

    Why do people make salary sound so good? For me it would have been better to stay an hourly employee. When they asked me if i wanted to move to a salary position i said yes because i thought it would have more perks! When i talked with HR he said i have more perks staying salary i asked why and he replied if you become hourly we will be watching everything you and monitoring your computer. He said i will not be ALLOWED to talk to anyone. I replied thats fine.. Im here to work not play… and if i can make more $ doing it that would be great…

  32. David*

    I am an exempt salaried employee. Before this week, I was a traveling wholesaler in the state of Florida and was given a company car, expenses, etc. However, in the past month, by boss has taken me off the road and forced me to work in the home office 2 hours a away 5 days a week. He was paying to put me up in a hotel. Yesterday he told me he was taking my company car away and not paying for a hotel. I am having my girlfriend come and pick me up, but since she works, and has to get back, can only come and get me at 1pm. I let my boss know this and he said he is only going to pay me for a half day. Is that legal? He is forcing me into the situation and I would have no other way to get back home (since I drove the company car here). I just don’t think he can do that.. am I wrong?

  33. melissa*

    Just a followup:

    After saying something to HR about going hourly to make more $ the Vice President came into my office and told me he was going to give me a $50.00 a week increase on my salary! Sometimes it does pay to say something. Thanks for all your comments!

  34. anonymous*

    In this posting i see that the writer indicates “if an employee is absent for two full days to handle personal affairs, the employee’s salaried status will not be affected if deductions are made from the salary for two full-day absences.” How would one determine what constitutes “personal affairs?”

  35. RBB*

    So I am an exempt employee, I was suppose to start on Monday but when running a background check my personal data was entered incorrectly by my new employeer delaying my start date until Tuesday. I ended up working 4 days (Tuesday through Friday) at 10+ hours for each day. My employeer is only paying me for 32 hours for this week, deducting what represents one day of my salary. When I questioned it I was told that as salary I was not paid by the hour, I agreed but also stated nor was I paid by the day. This of course got me no where. I would just like an outside opinion on the situation if at all possible….thanks.

  36. ZG*

    If I am a salaried employee and the office has to close because of a power outage, I understand we are paid.
    But what happens when the boss add an extra day of work to make up the day? She wants to put in 48 hours and get paid the same. It is not fault of our own the power wen out. I feel totally taken an advantage of. Is this legal for her to do?

    Thanks,
    Z

  37. Anonymous*

    I’m an empolyer in Ohio, I had a salay office person, take off several days to train for another job with another company. She gave me very little notice, it’s just her and I in the office. She worked one day of the week, took off the next day, did one hour of work at home, then a holiday came and she returned the day after.
    We have company policy that states, that in order to get paid for the holiday, you have to work the day before and after. My question is, by law what do I pay her?

  38. Michelle*

    I guess what I don’t get as an exempt employee I do not have to clock out due to my set salary. I just have to clock in. However, if I have an emergency or my car breaks down and I’m an hour late I have to use PTO for that hour, regarless of the fact that I will still put in a 10-12 hour day that day. No my employee who are non-exempt if the same happens to them but they clock in and out. If during the course of the week they work an additional hour, time will not be deducted because they made that hour up. So it seems really unfair that I work 50+ hours a week and would have to use 1 hour of PTO on the morning I had some kind of car issue. If I leave early I have to have preapproved time off to again I will be using PTO regardless of the hours I actually put in. It looks to me that as an exempt employee i should clock in and out to keep my PTO time from being deducted.

  39. Lisa*

    California exempt employee. We have no work for the employee for the entire week. No job to go to. We can pay employee for week using vacation pay. We have sick or vacation. employee says he doesnt want to use it. I believe we dont need permission. Correct? Lets say he had zero vacation hours. Do we have to pay the salary? It may be several weeks until we have something for employee to do.

  40. Dianne*

    I am a salaried employee that was hired at 37.5hours a week. Most recently our office decided to make it easier on finance and move everyone to a 40 hour work week. My hourly rate just went DOWN how right is that… Fort lauderdale florida

  41. DCW*

    I have been working as a salaried employee for my company in California for 4 years and never had any issues until this past week. I did not come into the office for two days last week due to an eye injury, however I answered e-mails (from my smart phone) and took calls both days. They are now saying they are not going to pay me for both of those days. I do not have any vacation time left. We do not have PTO or Sick time. I read through this article and all the posts and it’s still not clear to me if they have to pay me or not.

    1. Ask a Manager* Post author

      Research exempt and non-exempt and figure out which one you are. If you’re exempt, they have to pay you for the full week. If you’re non-exempt, they have to pay you for the specific time you spent working during those days.

  42. Anonymous*

    I’m told I am a salaried employee. I make a set year rate (25000.00), divided and paid bi-monthly. I normally work over 40 hours a week and my employer notes any hours over 40 hours. Then if I work under 40 hours a week she deducts from the hours noted (comp time she calls it). Is this the way it is suppose to work? Also my job duties started as one thing and almost every week at this point she adds another duty that I am responsible for handling. I now have so many different duties added that it never all gets done. Add to that that I was given a blackberry to answer emails to the company on nights and weekends, and my name was added to the client contracts to call me first in case of after hour emergencies. Besides the fact that I make less than the other employees except for the housekeeper( I know because payroll is now my job also), I am the only salaried worker here-everyone else is considered self employed (1099).

    1. Ask a Manager* Post author

      The question is whether you’re exempt or not exempt. If you’re exempt, she can handle your accrued time off however she likes, but your paycheck must be the same every week (she can’t dock it if your hours are under). If you’re non-exempt, she must pay you overtime for every hour you work over 40 in a given one-week period.

      1. Anonymous*

        I asked her if I was exempt or not exempt, she has no idea what that even means. She said ” This is how it works when you are on salary-i keep track of anything over 40 hours, and anytime you work under 40 hours I apply those extra hours you worked before to make it up to 40. But if you have no accrued hours over 40, then I pay you for 40 hours but you owe me extra hours.” In other words if I don’t work over 40 hours (and don’t have any time over 40 hours I have worked previously accrued)and then one week I work 32, then I owe her 8 hours of work free. Is this the correct way for a non-exempt employee to do things? Because I don’t get time and a half for any hours over 40 and I don’t get vacation or sick leave either. I do get paid for holidays-the basic ones.

        1. Anonymous*

          And…..
          She takes out taxes and all the other stuff from my check but has not paid the IRS or reported any earnings for me yet (its been over 3 months) and I was suppose to get insurance also and still have none. Ehhh….I might as well look for another job I suppose, I think she is just using the exempt and non-exempt method at the same time for her benefit. And to add to it all-she tells me sometimes to just go home early if she thinks I might get more than 40 hours because she doesn’t want me accruing to many hours.

        2. Ask a Manager* Post author

          No, what she’s doing is illegal. Read up on exempt and non-exempt and figure out which one you are. The rules for that classification will govern this stuff.

          Also, she needs to deal with the IRS stuff — that’s illegal and could get you both in trouble. I suggest contacting your state labor agency about all of this.

  43. rick*

    I am an exempt manager. Recently a disgruntled employee told my supervisor that I was lucky he did not have his gun is his car after I denied a pay increase for him. I terminated the employee that day. The next day I was told by another employee that the disgruntled employee told him that he had followed me home and that I had better not ever fire him or I would regret it. I am currently in the process of filing a no contact/harressment order against him, he lives approximately 3 miles from me. I am not comfrontable leaving my boys (19 and 11) at home by themselves until this order is presented to the disgruntled employee. Between the filing and court appearance it will take at least two days to complete the court order. Does the company have to pay me for these two days? I worked the first 3 days of the week. The filing will also cost me $83 to process, is that a cost the company should reimberse me for? I believe the company has to provide a atmosphere that is free of harrassment, I do not believe I should have to pay to insure that happens when it is all work related, your advise is appreciated.

    1. Ask a Manager* Post author

      How awful! I’m sorry you’re going through that. I’m not sure what the company’s legal obligations here are, if any, but they certainly SHOULD be helping you as much as possible on this. I would simply ask your manager.

  44. Lori*

    Management is on salary. Some work 8 hours because they were told that when on salary it was not required to take a lunch break. Some work 8.5 hours even though they do not take a lunch break. Is the statement true about being on salary and not having to take a lunch?

    1. Ask a Manager* Post author

      Well, no federal law requires breaks. Some states do and others don’t. In states that do require breaks, the law generally only covers to non-exempt employees — so salaried management employees would not be covered by it.

      1. Lori*

        So with that being said, can they let certain managers not take a lunch and only be here 8 hours but others that do not take a lunch require them to be here 8.5?

          1. Jamie*

            I would like to lobby for IT to join those protected classes of race, gender, and religion. :)

            Because I think I’m totally being discriminated against because of my job description. I’m on call, no one else is. I have to fix people computers, no one else has to…

            Seriously, though, different positions may require different amount of time on site each day. As long as you’re happy with your hours, compensation, etc. it should be regardless of how other positions are structure.

  46. mark*

    Well I have to check my status on that, but whT would be the difference? The rsason for the qusstion is because the employer I work for is shady and make excuses for everything.he tries to weezle out of important work toppics.

  47. Anonymus*

    So for what I’ve read here I understand that exempt employees have to get paid if they are out sick. Now my question is the following. My company has no benefits whatsoever no pay sick time nor vacation though we are entitled to one unpaid week off a year (I guess that is vacation) so with that said, how do you control an exempt employee who abuses this exemption and constantly calls in sick knowing that day has to be paid. How do you say you’ve called in sick too many times when we don’t have a sick policy?

    1. Ask a Manager* Post author

      You can require reliable attendance as a condition of the job. You can discipline and fire employees who don’t regularly show up for work.

      I’d suggest your company give vacation and sick time though; you won’t be able to attract and keep good employees without it.

  48. Anonymus*

    Thank You, I agree and we are working diligently to offer some of those benefits, however in the midst of that we have exempt employees who are abusing the privilege.

  49. Tara*

    I don’t understand why we don’t just all have paid sick days. No employee should have better rights or advantages when it comes to this issue.

    If anything, fast food workers should have access to keep the spread of disease from happening.

  50. Andrea*

    I am a salary employee and we are a small office. If I sneeze or anything like that I am sent home because they do not want to get sick. I have 5 sick days and they all have been used this way. I was out last week with the flu for 3 days and will not be getting paid. I was able to come to work at least 1 day of does 3 days but they did not want me in until i was fully recuperated. Should they pay me? Should they pay me when i’m sent home? Thanks!!!

    1. Jamie*

      Are you exempt? Salaried doesn’t always = exempt.

      If you are exempt they need to pay you if you worked even one day in the pay period – although they can dock your sick time, PTO, vacation time they can’t dock pay.

      If you are non-exempt they only have to pay for the time you worked.

      A lot of people think salaried people are all exempt and this is a fallacy.

      1. Jamie*

        Clarification (excerpt from DOL website):

        “14)
        Question: May an employer make deductions to an employee’s salary without jeopardizing the employee’s exempt status?
        Answer: Deductions from a guaranteed salary are allowed only in limited circumstances.

        Deductions from pay are permissible: when an exempt employee is absent from work for one or more full days for personal reasons other than sickness or disability, or is absent for one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also, an employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act. § 541.602(b).

        The DOL website http://www.dol.gov is a great resource.

  51. Andrea*

    I am exempt and all of my vacation, sick and personal have been used. So now if they send me home or tell me to stay home i do not get paid :( in February my grand-mom pasted and i was out for 3 days because i had to handle everything. My employer used my 2 personal days and a vacation day for that. So if i get sick the rest of this year i just do not get paid?

    1. Jamie*

      If you are exempt, and there are no extenuating circumstances as stated above, you shouldn’t be docked for time out sick if you worked for part of the pay period.

      That said, a company can use disciplinary actions for taking accrued time off, if they chose.

      If I were you I’d speak with my manager about the situation and proactively discuss what should happen should you get sick again, since they have made it clear they don’t want you in the office if contagious.

        1. Jamie*

          Subbing for HR for several months was so traumatic for me, I like when I something I learned there comes in handy. :)

  52. exempt*

    If an exempt employee (no OT eligibility) is sceduled 5 days, works 48 hours total the first 4 days, and misses day 5, can the employer deduct 8 hours of the employee’s salary for missing a full day of work?

  53. Anonymus*

    I was recently laid off, for what they said, a week. Im a salaried employee, how would this affect me?

    1. Ask a Manager* Post author

      Do you mean that you were furloughed for a week but will return after that? If so, you can file for unemployment for that one week of pay that you’re missing.

  54. unsure1*

    I work in the North East and with the potential for long-term power outages, how does it work with regards to pay for a non-exempt but salaried employee?

    I may want to go to work, but can’t because the office can’t be opened due to the Hurricane (an act of God as the US Labor qualifies it) and the fact that public utilities can’t supply power so I am guessing I would not get paid, is that correct?

    1. Ask a Manager* Post author

      As a non-exempt employee: If your office closes because of the storm and thus you don’t work on those days, your employer is not required to pay you for those days. Some employers still will, but the law doesn’t require it; it just depends on what your employer’s policy is.

  55. salary*

    I am on salary and i got my paycheck and he switched me to 10dollars an hour, without talking to me. Half of the time i didn’t clock in cause in on salary. What should i do?

    1. Ask a Manager* Post author

      If you’re now being paid hourly, that means that you’re owed overtime for any weeks where you worked more than 40 hours. You might point this out…

      1. salary*

        Okay! I had 74hrs. I did let him no, my check is a 300 difference.should i call labor board, and unemployment

  56. Ken*

    Hi, I’ve read all these posts and there is some great help here, thanks! I have a unique situation that Id like your take on:

    I’m a salaried exempt employee in Illinois. My company closes its plant and offices around the holidays to save overhead. Employees like myself are required to take vacation time for these days. This past year (2012) the company closed for 3 days after Christmas, and I only have 2 days of vacation. (I received a week in July and used 3 days in Sept. Last year, only one day was required around Christmas so needing 3 days of vacation was a bit of a surprise. Plus, we are not notified of the holiday schedule until 1 week before the holiday.) If they use my 2 days of vacation, am I still entitled to the last day’s pay, since I was basically off for the entire week?

    Now, I did actually go into work for a few hours, ON ALL 3 DAYS! Not full days, but I was there for 3-4 hours each day chipping away at some projects. I was not “approved” to work those days, the office was open for painting and other housekeeping projects, so I decided to go in. Does this count as “working in that weekly time slot” to warrant me receiving that last day’s pay?

    Seems ridiculous to quarrel over when you consider the long days I work for this co. to nickel and dime me for one day, but thats where we are. Any thoughts?

    1. Ask a Manager* Post author

      I’m not a lawyer, but it sounds like they should indeed pay you for the full week since you’re exempt. They can require you to use a future vacation day for the time though.

      1. Anonymous*

        Thanks for the quick reply!

        I do not expect them to pay me, unfortunately. Last year, we required one day of vacation, which I had not accrued any of yet, but I had worked a Saturday that they agreed to give me a comp day for, and use it for that day around Christmas.

        What really stinks is that I had wished to take those 2 days for a family vacation around spring break and now I cant. Although, I do feel a cold coming on that may not show itself until that day, coincidently of course. Nothing like showing your employees you demand excellence and loyalty for as little as possible. What a great game it is to have to play. How much can we squeeze out of the other?

        Thanks again for your help, Ill post what happens :)

        1. Ken*

          So I wrote my boss an email stating that I believed I should be paid for the full week, considering my exempt status. She took it to the’powers that be’ and they agreed to pay me, but they did take my remaining 2 vacation days. So the result was good, but I did lose my vacation, which sucks, but I understand thats allowed, thanks to you. Oh well, I may just have to get sick for that weekend trip I had planned in June.

  57. Overworked*

    I am a salaried exempt employee, and the company I work for has recently doubled production. Prior to this, we were a Mon-Fri operation. Now we are a 7-day operation which requires someone from my dept. to be there every Sunday. So every few weeks I’m required to work 6 days/week. Is this legal? I have no problem working OT during my normal work week (M-F), but I do have a problem with being required to come in on days I’m supposed to have off.

  58. Amy*

    I’m a small business employer. My employees are well within the “exempt” designation. They are compensated hourly right now, but I would like to change to a salaried model next year. My main stumbling block is the jury duty piece. Jurors in my jurisdiction get paid squat. If I had an employee called into jury for some multi-week or month trial, and had to pay their salary in addition to a substitute teacher to replace them, it would put me out of business. Is there no exemption for small businesses having to pay salary for jury duty?

    2. Jamie*

      It depends what state you’re in. In Illinois “No employer shall be obligated to compensate an employee for time taken off for jury duty. ” That’s taken from the statute itself.

      So we don’t have to pay, but they legally have to allow employees the time for jury service without negative repercussions.

      That said, most employers I know of do pay for jury service because otherwise people are suffering a hardship due to civic duty beyond their control.

  59. Amy*

    Thanks Ask A Manager,

    I’m in Oregon.

    And Jamie, IL can override the federal statute for exempt and salaried employees?

  60. Amy*

    This is what I found:

    “There is no Oregon law that requires an employer to pay salary or wages during an employee’s jury service. An employer’s personnel policies, the specific employment agreement between an employee and an employer, and, in some cases, the employee’s employment status under federal law determine if an employee is paid during jury service. ”

    But the fact that their status will be exempt and salaried would require them to be paid under federal law, right?

    1. Ask a Manager* Post author

      If they work any part of that week. But if they’re gone for a full week or weeks, you do not have to pay them, under federal law. For exempt employees, the law is, “An employer may not make any deductions from that employee’s pay during any week during which he or she performs any work whatsoever.” So if they were gone for 4 weeks, you’d just ensure they didn’t do any work during that time, and wouldn’t be obligated to pay them during that time.

      That said… do you really want to do that to employees?

      1. Amy*

        I don’t, but as I said, we are a small business with 4 employees that are required at all times to meet State childcare ratios. I would have to pay double salary those weeks (or months) – once for the juror and once for the substitute. Our ‘profit’ (AKA my salary, which is well under minimum wage as it is) is negligible and I could very easily be put out of business if an employee were called into a long trial. So, I can make policies to not compensate for jury duty or risk having to lay off all of my employees and leave the families that rely on us in the lurch if this were to ever occur. That’s a pretty easy call. If I have to pay for partial weeks, regardless, most jury duties that last only a few days would be covered. It would be up the employee to file with the court to be excused for unreasonable financial burden.

        1. KellyK*

          That is a really crappy position to be in. If you end up doing it that way, I would put the policy in writing and be proactive about recommending to an employee that they take their handbook when they get called and ask to be excused because they won’t be paid.

          Depending on what you offer vacation-wise, it might also be worth having a policy where people can use more days than they’ve accrued, under specific circumstances, with a set limit. So, for example, if you allow employees to “borrow” five vacation days, then someone who goes on jury duty for six weeks can use all their accrued vacation, plus five extra days, which won’t be their normal pay, but might tide them over money-wise until the trial ends. You wouldn’t be paying them for the whole trial, which you couldn’t afford, but they would get *something* during that time if they couldn’t get out of jury duty.

    2. Jamie*

      I don’t know about Oregon, but I know you need to pay an exempt person if they worked for any part of the week (pay period). They do not need to be paid for a week in which they did no work.

      I.e. I’m exempt and I’m out Mon-Wed (sick, jury duty, whatever) but work any part of Thurs-Fri they need to pay me my whole salary – they can’t dock the days I was out. But if I was out the entire week they don’t have to pay me at all.

      So yes – if they miss a day you’d have to pay them – but the multiple week long trials you’re talking about wouldn’t fall under that rule after week 1.

  62. Edna*

    Ok…here it goes… I have tried very hard to turn in my reisgnation at my facility…three times they have respectfully declined.. stating that they could not lose me…then it came down to my evaluation with a new administrator and DON…director of nurses….I have been salary working plus hours every pay period….then I received my evalutation 3months later and was given a bad eval…..my question was….”then why didn’t you let me quit 3months ago?”… so now I resigned and they would not let me choose the shift I wanted to work, so I chose a different facility…now, they tell me that my pay will more than likely be docked…I am just learning of EXEMPT and NONEXEMPT…and I am not sure which I fall under, but I am sure that I did not work a full 80hrs my last check. But should I really get DOCKED for all the other hours I put in that I did not get compensated??? They said I had to give notice, but I recited that I had given notice three times before that they did not accept….what should I do???????

    1. KellyK*

      Okay, I’m a little confused by this, but a couple things jump out at me.

      The first is that a company does not get to “decline” your resignation. If you want to quit, you quit. They can *ask* you to stay, but they cannot make you stay.

      Second, what is your pay being docked for? If you’re exempt, you have to be paid for every day you work, but not for days you don’t work. So if you would normally work 10 days in a pay period and because you’re quitting, you only work 7, they can pay you 70% of normal. If you’re non-exempt, you have to be paid for every hour you work. But, if it turns out you should’ve been non-exempt and they classified you wrong, you would have to sue to get that back pay.

      So, I gather that you work at a hospital, nursing home, or something like that. Are you a nurse? Nurse’s aide? Usually, nurses are non-exempt, except for DONs. (Maybe an RNAC or similar position would be too.) Aides would definitely be non-exempt.

      1. KellyK*

        If you’re exempt, you have to be paid for every day you work, but not for days you don’t work.

        That should be “you have to be paid for every day you work during your last week…” For an exempt employee who isn’t in their first or last week, you have to be paid the same for every week in which you do *any* work. But again, if you’re not actually exempt, that’s not relevant.

  63. Edna*

    I was an ADON, and on salary. So every pay period I was expected to work at least 80hrs….which due to the work load and assignments and being on call 24hrs a day Mon – Fri and some weekends….was never just 80hrs….every pay periods i totaled 100 – 140hrs, not including the on call…..so my last pay period I only had 39 hrs, but the dropped me down to hrly for that paycheck and at a lesser rate…..this BY far does not seem fair or legal. Am I just disgruntled?

  64. Tina*

    We have an employee (9 employees total in our office so FMLA does not apply) that is going through some medical issues. They are working 4 hours per day. All vacation and PTO/Sick is used up. Do we still need to pay her for full days rather than docking for half days since it is medical?

    1. Tina*

      Adding to the above, can we require them toalternate and work one full day and take the next day off rather than work half days? (Then we could dock the full days not worked.)

    2. Ask a Manager* Post author

      Not sure — check with a lawyer. You might want to switch her to part-time status and part-time pay for the duration of this.

      You can’t dock for full days not worked if someone is exempt — they need to be paid full salary for weeks in which they did any work — so that won’t solve it. Switching to part-time might.

      1. Tina*

        Just to confirm, under sick leave in your blog above, it indcates full days can be docked but there needs to be a policy in place in order to do so, correct?

        1. Ask a Manager* Post author

          No, with exempt employees, if they work part of any week you need to pay them for the full week (unless it’s their first or last week). You can dock from PTO all you want, but not salary (with exempts).

  65. Tina*

    I apologize for not understanding but then what does this statement mean that was taken from above:

    “Sick time: You can deduct for full-day absences if you have a policy for doing so. You can also apply the employee’s sick leave/PTO time if they have any.”

  66. Alexandria*

    I live in California and work in a medical facility as a director and spend about 60% of my time there training nurses and other new staff, for they can’t be left on their own. I then have to work form home to compensate for the time I wasn’t able to perform my own work. I am salaried exempt but my paycheck is never the same. They never write how many hours worked when docked, they just change my salary number on my paystub when they do. They leave the benefits part saying available. This place offers no sick days, pto’s or any benefits except 1 week vacation after 1 year. They don’t allow vacation days as sick days either and one can never go on vacation because there is no time. I average a minimum of 10 hours a day without a break and can’t leave the facility. If I am sick with an MD note and worked 3 days out of 5, I am docked the 2 days. Then for example I am sick the first 2 days of the second week and work the last 3, I am docked for 2. I even make up the 2 days by working from home and/or when I return I will work how ever many hours it takes so nothing ever falls behind. It appears that what has been done to me is illegal? The owner pays me whatever is cheaper for him. I feel I am an hourly employee because my pay is changed to hourly ,when docked for being sick and when I work from home, which he is aware of because he set up the remote access to my computer, I work for free. I take calls from the registry at 3am for free and have to keep my phone on. When I was on an hrly rate as a head nurse, I was docked for a 30 minute lunch daily and never took it because their was no time and can’t leave the facility. I try to eat or drink as I document. This goes back many years and he refuses to send me my HR file. I clock in and out only for pay deductions. BTW, when I become ill, it is because I will work 10 hours at the facility, a few hours that night and almost all weekend from home. Is this legal? He also refuses to pay all staff overtime and they are all on salaries and docked for lunch with no breaks! I would greatly appreciate any input for when I read the California laws from various websites, they seem to contradict themselves at times. He owns an HR company and states he knows all the laws and becomes angry and refuses to answer any e-mails with questions or concerns about employment labor laws in California. It was 1 year ago, I asked for my HR file and have the e-mail. What are the statue of limitations, if he did indeed break the law? It is hurtful because I don’t want or like to sue and never have but being used hurt me more.
    Sorry so long!!
    Thank-you:(

  67. Business Owner*

    You have mentioned several times that you must pay employees for a full week if they worked any part of the week; however, your article states:

    “Deductions from pay may be made when an exempt employee is absent from work for one or more full days for personal reasons, other than sickness or disability”

    It appears to me as if you can dock pay for full days (not partial days) of personal time off (if an exempt employee has no available PTO).

    I am also of the understanding that if someone has no PTO available (has used all of it), the only thing an employer can do for an employee who consistently works less than 40 hours per week is to dock their PTO — and have it go into the negative since they will have none after a few months of this. Or convert them to hourly employees? So they can accrue their PTO again?

    Is this correct?

    Judy

  68. Anonymous*

    I am and exempt salaried employee recently I had to leave work 2 hours before the work day ended. However, I was told by my Supervisor that I will have to amend my time sheet for the missing hours (meaning using either sick/vacation time.) If I am salaried and i work even 1 hour for the day am I not entitled to the full days pay. I have worked overtime and not paid for it, because salaried employees dont get OT. I asked payroll this question, payroll transfer me to HR who told me they would get back to me. What do you think

    1. The IT Manager*

      Are they going to dock your pay for the two hours you left early? If so that is wrong. But even if you’re salaried, they can still make you use PTO if you leave work early.

  69. anon*

    I am a salaried employee and get paid twice a month. when I miss a day, should I be paid my base pay minus the hours missed or should I be paid only the hours worked?

  70. loopa*

    Just need a question answered please, I am on salary I work 9 to 14 hours a day I took 2 days off for my birthday and was told I had to use vacation day to cover those 2 days…….. I thought a day or 2 would be covered and the over time balanced it out?

    What does salary mean??

  71. Loril*

    I am a slaried employee for 12 yrs same company. I was diagnosed with stage 3 breast cancer Nov 2011. I had a lumpectomy on Nov 30. Not good enough… I started chemo the first of Jan 2012 anf ended ended the end March 2012. the only days i missed work were when I had to go 60 miles to Moffit and it just exhausted me. I had a unilateral mastectomy that I put off for 3 weeks to make sure all of my seasonal work was complete without error. I came back from the surgery 2 weeks later and ended up blowing out stitches and having a wond vac attached to me at home for 3 more weeks. Once completely healed I started 33 straight days of radiation again the only days I missed were recovering from surgery and 60 mile dr visits. i worked every day of chemo and radiation. I then had to have the other breast removed and reconstruction )extensive) surgery started. I was told to plan 6 weeks off of work – I followed Drs orders and am nack at work now. Through all of this I asked about my pay I knew my vacation would apply to time off but I asked about short term or long term disability I was stold not to worry. Well I came back to work and my boss told me that my attitiude during the last year was bad (pharmacutically caused and was aware and tryin to get meds fixed) and that I didnt step up to the plate and work extra hours like everyone else. and he was kind enough to pay me for my time off. Is he required to pay me? We as employees are paid through a leasing company. There are other people who have had multiple surgeries and been paid bu they didnt miss 6 weeks just 2 or 3. I just need to know where I stand as I have two more “smaller} surgeries to finish everything up and I am worried he is mad at me and going to not pay me. Is he required to pay me or not

  72. Kes*

    Are their any “rules ” to as who is obligated to take a furlough day ? I work with salaried employees but I am hourly . I am the one that was chosen to take 1/2 day furloughs instead of salaried employees . Can a non profit plan more than a month ahead for furlough days ?

  73. expert reports*

    Have you ever considered about including a little bit more than just your articles?
    I mean, what you say is fundamental and everything.
    Nevertheless imagine if you added some great graphics or video clips to give your posts more, “pop”!
    Your content is excellent but with images
    and videos, this blog could definitely be one of the very best in its niche.
    Superb blog!

  74. Mft*

    I’m exempt salaried. If I take 6 hours off sick, but worked 2 hours, is my employer allowed to use 8 hours sick leave to “cover” my time off? Their policy is that sick leave can only be used in 8 hour increments. How do I get them to not take more hours then I took off?

    1. Jamie*

      Yes – if you are in an area which doesn’t require sick time (and I don’t know how it works in the few areas that do) they can take the time from your bank in full day increments.

      What they can’t do is dock your pay.

      However, employers who do take whole days no exceptions end up with people who will take whole days off when half would do. If I knew leaving 2 hours early for an appt would get me docked 8 hours – I’m going to be off 8 hours. It’s a shortsighted policy – but not illegal because sick time/PTO isn’t a federally protected right.

    2. KellyK*

      Unfortunately, I don’t think you can. You can ask about it politely. You can point out that doing sick time in full-day increments *reduces* how productive sick people will be (e.g., if you wake up with a horrible headache and call off, there’s no point coming in in the afternoon if you feel better).

      And you can make certain, as best you can, to actually take off the full amount of time that’s being deducted. For example, if I were sick two hours into a shift, I would tough it out if possible, then take the following day off if I needed it. And if I felt lousy in the morning, I would err on the side of taking the whole day rather than losing sick leave for time I spent working.

  75. Steve C*

    I have two exempt salaried personnel. I have annually scheduled days that the office will be closed. Can I require those exempt salaried employees to use their accrued vacation time for those scheduled closed days?

  76. Steve C*

    What I meant to ask was am I required to pay exempt salaried employees for schedule, previously announced, office closed days? If they want to use accrued vacation time or comp time their salary would be paid but otherwise it is time off without pay. Is that correct?

  77. anonymous*

    My company closed at 3 for a 40 th anniversary party but since i didn’t want to go they wanted me to stay alone & work until 5 pm they never said it was mandatory to go to this party i asked the party planner several times & she said it was not mandatory & tje comoany docked me time cause i didn’t go to the paty is that legal

  78. Joelle Martel*

    If I Work 41 Hours In OneWeek, And 32 TheNext In The Same Pay PerioD, I RequestEd 4 hours PTO For The 2ND Week I Worked 32. I Was Called Off Due To Low Census. Was Told That They Don’t Go Week To Week, But Pay Period. Is This Fair? I Was Hired As A 36 HouR A Week Employee. I Usually Lose My PTo Hours Because Of This.

  79. anonymous kevin*

    I was recently working at a company where they would pay me 100 per diem for be in away from home plus my hours. Well I recently got my fired and my check from them only gave 50 per diem can he get in trouble for that and could I get the money that he owes from me? Also too add I was working out on the pipeline but yet didn’t sign any employment paperwork until the third day or did I ever take safety courses to be out there laying pipe osha would be Furious! If you could please get back me with answers to this frustrating situation that would be greatly appreciated Thank you for your time sincerely -this guy-

  80. Nancy*

    I am a salaried employee. Can my employer dock me 1/2 day if I come in 1 1/2 hours late. (I was sick).
    In the past we were not docked as long as we made up the time on our lunch hour.

    1. M1*

      if you come in 1 1/2 hrs late but lose 4hrs of pay time I’d probably come in 4hrs late next time.

      Regarding making up time; it depends on your status as exempt or not exempt. Having a salary doesn’t make you exempt though.

      Making up time is complicated. Just because you are physically working the extra hours it fails to consider that those hours are not when your employer needed you to work (depending on your job) so it is not fair to suggest that lunch hour is the same as opening hour if your company has busy mornings and is closed for lunch. This may be why your boss is upset to the point where they docked you 1/2 day (which still isn’t right though).
      Additionally, I have seen the biggest problem with making up hours when it is abused and employees want to make up time the following week. By law, if you are not exempt and you work over 40hrs you should be paid overtime. Problem here is if you are “making up” time from the week prior your company should actually be paying you for overtime during the week where you exceeded 40hrs to make up for the previous weeks 38hrs.
      Overall though it sounds like you should talk with your employer and get clarity of missed time, use of Paid time off and how they calculate hours so you know ahead of time what your situation will be

  81. EM*

    Hi.. I am an exempt employee working in Healthcare IT in NY. I work for the IT department supporting a clinical system at a hospital. I report to work early, stay late, and work off-hours (when required by the job) and weekends due to being on a rotation on-call 1 week per month. I usually put in more than 35-40 hours per week. For this past snow storm that just hit in NY, I got to work late due to the weather conditions. Can the manager ask me in writing when I will be “making up” that missed time? Is this legal? Is there a law that prevents Employer from asking their employee to “make-up” time. I always hear from co-workers that a federal law prohibits employers from asking their exempt or salaried employees to make up time. But, haven’t really found something solid.

    1. M1*

      Maintaining an exempt status generally means you are salaried and expected to work 40hrs a week. You stated you usually put more then 35-40hrs a week. This would tend to suggest there are weeks where you dip below 40hrs which would be in conflict with your requirement of hours to the employer. If your manager asked you to make up time, you probably want to clarify what your required minimum hours is and make sure you have been hitting that.
      As for the request itself; the manager can most certainly ask you to put it in writing that you will make up the time if you are in danger of falling short of your 40hrs for the week. The proper request would be to ask if you would be making up the time or using your Paid Time Off for the tardiness (if you have time available). At this stage it would be entirely appropriate to ask you in writing ask for your response in writing so they can forward your response to payroll accordingly.

  82. Dk*

    I worked at a daycare for 9 months, the owners of the daycare get paid by the state for almost all the kids there, supplies and food. On snow days we close if public schools are closed now the owner said as long as they get paid by the state we will get paid and we think they do but they do not pay us. Another thing is the owners daughter works there she was off for 3 months and still is not back but she still gets a paycheck ever week, is she allowed to do that? Now this is a daycare that you get no raises, no paid vacations or paid sick days. So why is she entitled to get a check every week for sitting at home is it because her mom is the owner? Just wanted to know if she is allowed to do this since she gets everything from the state to run her business.

    1. M1*

      So you want to be paid for days you didn’t work and think its wrong the owners daughter is getting paid for days she isn’t working? Seems like a contradiction to me.

      As for the Owners daughter; they can pay her as they like for doing as little as she likes. After all, its their money not yours. They don’t suddenly get more income because of more employees. Guess you also never heard of working from home. Millions do it everyday and if you question them on this they will just say she does the finances/marketing/etc from home now.

      1. Dk*

        Ya I do want to get paid for the snow days, we know they get paid by the state for those days so why shouldn’t we!! They said as long as the state pays us we will pay the employees, they are just really sneaky people. My daughter is friends with the owners daughter (15 yr.old girls) my employer yelled at me in front of all the employees and said she was going to have to let me go if i do not bring my daughter to the daycare to find out why my daughter is not talking to her daughter, my employer went around telling all the employees that my daughter is a bully and she was going to have her kicked out of school. Not even true my daughter is not a bully would never bully anybody. And i did bring my daughter to the daycare to tell them, and they found out it was not my daughter, no apology nothing from them. Teenage girls do have their little fights!! I almost got a lawyer because i was so upset the way they treated me. I did so much for them people, and they don’t even care, I just don’t understand how an employer can treat their employees like that. If it was about the money I would of left months ago when they screwed me on my checks a few times before.

  83. M1*

    sounds like other issues are present. However:
    1. businesses which are closed for weather and can not provide utilities are not required to pay non-exempt employees for the lost day. Most businesses do it anyways when its just a day but it is not required by law if you did not have to go in at all. If you did work and they closed early you should be paid for the day unless of course you are an hourly employee in which case none of this applies to you.

    2. While they are still paid by the state, this is likely because the business is not paid daily but rather has an operating agreement for the year. Remember, the business must still pay rent, insurance, utilities and even plow the parking lot on snow days so they still have operating expenses even without employees present. The contract they have with the State most likely has inclusions for these closures and a max amount during the calendar year for which they can be paid out. Its likely this contract also has no requirement for paying employees on closed days either. Just remember though, they aren’t suddenly making more money because they are closed due to weather as they still have overhead expenses every day.

    3. If you are unhappy with the treatment of your employer you should document this with them and ask that they improve. If you keep things factual and ask they improve and they do not you can quit with a proper claim of a hostile work environment. You must however give them an opportunity to be both aware you are unhappy as well as improve the conditions for this to be a valid claim.

  84. DMS*

    I have an employee who is salaried exempt. Recently she had a baby and is only able to work PT from home and on a limited basis, ie can’t return phone calls or perform the majority of her duties. Supposedly she made an arrangement with her old boss, who no longer works for us, to be paid her full salary until she returns at which time we would deduct her vacation time from her for the hours she did not work full-time (note that it appears the supposed agreement would mean that if she used all her vacation and sick hours up she would continue to get her full salary for only 2 hours of work a day). May I also note that she indicated that she would not use all of her vacation time during her absence. Our business decided before she went on leave, which she was told in person verbally not written, that she would be moved to an equal hourly rate and compensated for the hours she was actually working and that any of her vacation or sick time she had accrued could be used to offset the missing time. Once she is able and returns to work on a regular full-time basis she would be reinstated to her normal salaried position. Now, after being on this for three weeks, says she is not being treated fairly and her old boss made this promise to her in emails. I have nothing in her files saying anything of such agreement. If she is not working in the office the agreed upon hours at the time of her hire of 40+ hours and is not able to perform her duties from home as are required by her job are we required to pay her her salaried wages? She is working about 2 hours a day and we are not even sure what she is doing and she has been asked to provide a log showing her work which has not been supplied.

    1. M1*

      A lot of questions here:
      1. Is the employee collecting any kind of Maternity Leave (Temporary Disability) from the State? If so it would be fraudulent to also be collecting wages from the company at the same time as the claim.

      2. What are your states laws regarding Maternity Leave and how many employees do you have (less then 50 and FMLA does not apply).

      The above are important because they are your best solution without causing any ill feelings. If the employee has the ability to file for temporary disability under your states maternity leave coverage then you should let her know that you no longer need her for the 2hrs each week and that she should file for temporary disability during her leave. In doing this she will get to keep all her vacation days upon return (if that is how your company does things; which sounds troublesome in the first place but that is another topic).

      Allowing her to keep her time, keep her job open and not have to cover any of the expenses is the best fit for everyone. One thing to note: Temporary Disability (if your state does this) requires the person to come back to work. It sounds to me like this employee is setting you up to consume all her time + vacation while out on “leave” and then quit afterwards or hope to get fired as well.

      You have a major problem if you continue to pay this employee “vacation” time on a weekly basis during her absence because it means you are not really indicating she ever went on leave and instead was just using her vacation. This presents a very difficult situation with regards to keeping her job open during “leave” v.s she just was out on vacation time.

      At the end of the day as a Manager/Employer we have responsibility to all the workers at our companies. If one employee is hurting the rest of the company’s ability to function properly then it is a determent to the jobs of everyone there and you have the hard job of having to put a stop to it.

      Suggestions:
      1. Find out about Temp Disability for this employee.
      2. Ask for the supposed emails from this person guaranteeing time. Ask for them in writing and do it NICELY by saying you want to honor any agreement but you need her to provide the emails so you can have all the information. If she fails to provide them then her “agreement” is a non-issue. Even if she holds them back and then you make a change and then she comes forward with them after the fact you will be within your rights because you did ask with the intent of honoring it.
      3. You are most definitely not required to pay her while she is out on leave; even if there is a past agreement. Again, as a business you have the right to decide if things are a burden on the company and you have the right to improve the situation if they are. Meaning; even with an agreement you can say this agreement is not working and is causing a hardship on your business so while her former boss made it, you must now provide her with an alternative option to either return or take full leave with a set return date.

      Lastly (and I know its a lot to take in). Setting a return date is important and you should not be paying her vacation time until she has returned. If she fails to return vacation time is still a “benefit” and in no state or under any federal law is it “guaranteed” simply because it was accrued unless this employee has a written employment contract stating it. I’d think if they had a written contract it would have included Maternity Leave too though so odds are she is working without a contract and you are in an employment at will state.

      There is no reason to pay out vacation or sick time when someone quits or is fired as they have no legal right to it. These are benefits supplied by the employer and benefits can be taken away at any time for any reason when no employment contract exists.

      Employees take advantage of this all the time and will take all their vacation/sick time and then quit the next week back.

      Good luck, sounds like you are in for a bit of a battle with this one.

      1. DMS*

        wow…thank you so much for your insight. We are in the state of NC so we are an at will employment state. I do not believe we have state funded disability for maternity and we do not have an insurance plan for STD or LTD. With that being said I really appreciate your insight. Everything you said is exactly what I believed to be true. Just so you know we have never seen this supposed agreement even after telling her in both a verbal communication and an email confirmed communication that she would be put on hourly and paid for time worked only and if she chose to use her vacation or sick time she could but had to let me know so I can pay appropriately. Thanks again for your insight.

  85. JS*

    First I want to thank you for your article, but I am a bit confused since I have never heard of exempt or nonexempt salaried employees. For the past few months I have been a salary/commission base paid employee, and usually get paid which ever is more, so if my commission is more then my salary that is the pay I would receive. My question is, if I left the company on a Thursday and worked Tuesday, Wednesday, and Thursday, ( Monday having no access to my work vehicle) should I still get my commission pay, minus 1 day? Since it was greater then my commission? And how would i go about finding out if I was exempt or nonexempt salary?

  86. Pengi*

    I live in Pennsylvania & I am salary at FedEx Ground but we dont get paid for call offs & days off due to a holiday. Is it legal to not pay salary employees on holidays off? If not, who can I contact to report this? Also, I have 3 wks vacation but it has to be used in wk increments and cant be used between November thru January due to the busy season. Thanks in advance to any help you can give me/us.

    1. M1*

      Pengi,
      Yes all this is legal. Holidays and vacation time are “benefits” not legal rights.

      Asking if this is legal for salary workers is odd unless you aren’t thinking that Police Officers, Doctors, etc are not salaried or for some reason would have to work when you didn’t.

      You happen to work for a business who makes its money off delivering packages which unfortunately makes your busy season holiday season.

  87. AMG*

    Can an employer require a salaried employee to come in on their days off to learn how to do paperwork that is done at the beginning and the end of the day?

    1. M1*

      Salaried workers can be either exempt or non-exempt. Simply having a salary is not an indication one way or another.

      If you are a manager you would probablyview this as normal so guessing you are not a manager. As a regular employee the question is whether or not you are working 40hrs a week already or not. If you are not, then yes they can ask you come in if your salary is based on 40hrs and you are currently short of that. If you are already doing 40hrs then they can still ask, however you would need to be paid additional for it.

      Of course, in this situation it seems like its a small thing of only once or twice so you can learn something important. Refusing to go in or demanding they pay for what is probably only a few hours probably isn’t recommended career advice.

      If you like your job and its a matter of an hour here or there so you can learn something, you should go with a smile on. If you don’t like your job,try to be happy they are giving you an opportunity to be more valuable to the company. If you are not happy now and becoming more involved will upset you more; you should quit and find a job you will be happier in. It’s not fair to your employer and you’ll be happier in the end too.

  88. Joseph Montalvo*

    If I’m a salary paid employee in California but my employer sends me out to jobs out of state, do I still get paid for overtime? I do hands on construction work outside and there are some bi-weeks where I work 120 raw hours.

  89. Anonymous*

    I started working at a company in July 2013 and I am a salaried employee now. The agreement is that I don’t get any sick days or vacation days until after a year. Now if I take a day off or I’m out sick or have to leave early. They tell me that I owe them the time or I will not be paid for that time. I completely understand if I am out sick or take a day because I don’t have any benefits. What I don’t understand is if I leave early or come in late they tell me that I need to make that time up to get paid for that time. Also, they asked me to add my work email on the phone and I need to answer all my emails when after hours because I am a salaried employee. Is that correct and/or legal?

    1. Jamie*

      Whether you are salaried or not doesn’t matter, the law only cares whether or not you are exempt.

      It’s typical for exempt people to be salaried and non-exempt so a lot of people conflate the pay schedule with the status – but the law doesn’t.

      If you are exempt an employer cannot legally dock your pay for any pay period in which you worked at all during the week – they need to pay you your full salary.

      They can fire you for taking off, they can require you make up the time, they can dock your PTO, vacation, or sick time, etc. but they can’t pay you less than your weekly salary if you worked any part of that week.

      They can if you are salaried and non-exempt, but they are also required to pay OT when worked to non-exempt people even when salaried…so if you have to do the OT and will dock people for time not worked it’s a hassle for payroll which is why it’s so much easier to keep non-exempt people hourly.

      1. Jamie*

        It’s typical for exempt people to be salaried and non-exempt so a lot of people conflate the pay schedule with the status – but the law doesn’t.

        This should have read “It’s typical for exempt people to be salaried and non-exempt people to be paid hourly. When it comes to this all the words are important.

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