can my employer dock my time off when I work less than 40 hours if I’m salaried?

by Alison Green on June 27, 2019

A reader writes:

I work for a small company (fewer than five employees) in an industry where 50% of our business happens in the fourth quarter. During the months of October and November, I regularly work 70 or more hours per week, and as a salaried employee I don’t get overtime or comp time for those hours worked.

Fast forward to January, and my company implemented a new PTO policy where if we’re not at our desks 40 hours each week, we need to use PTO to make up the difference. We get 120 hours of PTO for the year (15 days) and no additional sick leave. I have a child with special needs and have already used or scheduled more than 50 hours PTO for his various appointments, upcoming surgery, etc.

Can my employer draw a hard line on working 40 hours per week during our slow season when I don’t get any consideration for working so many extra hours during our busy period? I did the math and last year I worked about 2,350 hours, when I consider a full-time job to be more like 2080 hours (40 hours per week x 52 weeks). I’m looking for another job for just this reason, but I’m wondering if I have any way to push back with my current employer.

The subject line of your email to me was “what does it really mean to be salaried?” so I want to answer that first.

Being salaried simply means that you get paid the same amount each pay period, regardless of how many hours you worked. If you’re salaried, your pay isn’t docked when you work fewer hours. It’s the same amount every time. (There are some narrow exceptions to that, but generally, this is what’s meant by the term.)

Things get more complicated in the U.S., where you’re also classified as either exempt or non-exempt. If you’re exempt (meaning “exempt from overtime laws”), nothing really changes from the salaried definition above. But if you’re non-exempt (meaning “not exempt from overtime laws”), your employer needs to pay you overtime (time and a half) for any hours over 40 that you work in a week. You can be “salaried non-exempt,” which means that you get paid a regular salary, but you also get overtime pay on top of that in weeks when it applies.

So the first thing I’d do in your shoes is to make sure that you’re correctly categorized as exempt. Your employer is treating you that way (not paying you overtime for all those long weeks), but it’s not uncommon for employers to miscategorize employees — and whether a job is exempt or not isn’t up to them; it’s based on federal law. If your job doesn’t qualify to be exempt, then they’d actually owe you overtime for all those extra hours.

But let’s say your job is correctly categorized as exempt, so you’re not owed overtime. Then we get back to your question: Can your employer make you use PTO for working less than 40 hours a week in your slow season when you don’t get any extra compensation for your long weeks in your busy season?

Irritatingly, the answer is yes. They can indeed require you to use PTO like that. I’d argue that (in most cases) it’s demoralizing and bad management, but legally they can do it.

The thing about being exempt (in spirit, not in terms of anything that’s enshrined in law) is that it’s not supposed to be so much about counting hours. On your side, you’re not supposed to look at every hour over 40 as “extra.” You’re getting paid to do a job, not for each individual hour. But of course you’re looking at it that way, because they are too — that’s what they’re doing when they make you take PTO for leaving early for a doctor’s appointment. It’s not reasonable for them to expect that they can nickel and dime you on hours but you won’t do the same in return.

So, what can you do? Well, you can point that out to them — that you work a huge number of “extra” hours in your busy season that you don’t ask to be compensated for, and so it’s not equitable to then have your PTO docked when you occasionally work fewer hours in your slow season. You can ask for comp time, or just more schedule flexibility. (Ideally, you’d do this with other coworkers, because the voice of a group often has more weight than the voice of a lone person.) Or you can ask for a salary that’s high enough that it feels like a fair trade for the number of hours you’re working, even without additional flexibility or time off.

They may or may not agree, but you’ll learn a ton about your employer by how they react to this … and if they refuse to budge, continue that job search.

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  1. Sloan Kittering*

    The way I have to think about it is, an employer is not actually obligated by law to provide ANY vacation leave, as far as I know. So they can make you use it any dumb way they want and still be within the laws. If they wanted to dock your pay – for example, you run out of PTO and now they are making you take time unpaid – there may be a legal element at play. But they can take back vacation anytime they want.

    I defer to any actual employment experts on this though. I’m no lawyer.

    1. your favorite person*

      I think it’s more about the spirit of the law, rather than the letter here. They CAN do this, but should they? No. It’s bad for employees and bad for morale, which is, in turn, bad for the company.

      1. Sloan Kittering*

        Strongly agree! And as others have said, it leads employees to take a tit-for-tat, clock-watching approach themselves. But like so many things, it’s perfectly legal.

      2. Life is Good*

        Yep, it does make for a bad culture. Old dysfunctional company did just that. Us salaried managers, who worked 60 hours/week, had to use 8 hours of PTO, just like hourly employees whenever the offices were closed for non-federal holidays. We not only worked so much extra time, but then had to give up flex time in order to get our full paycheck. Many times, I’d go into the office anyway, on those closure days, in order to get work done in peace and quiet. At one point I asked the upper managers what the benefit to being a manager actually was….their response? “the prestige of the title”. WTH? I resigned that position and took a job at the competitor for a lot more money and vacation time and not management. Woo hoo!

    2. CmdrShepard4ever*

      My understanding is if you are salary exempt you have to be paid your normally salary for every week/day you are available to work. But they do not have to pay you for time that you request off and not available to work in full day increments. For example:

      If you work 6 hour days everyday for a pay period for a total of 36hrs each week and 108 hrs per pay period they still have to pay you your full salary. At my job salary exempt employees fill out “time sheets” but they only mark if they did any work on a particular day or not instead of actual hours worked. Salary exempt employees need to take PTO in 8 hr increments. So for some employees managers will give them “free” days off by having them come into the office for an hour or two to do work and then take the rest of the day off, or will have them work from home by sending a few emails so they can mark an x for having worked that day.

      But if you request a day off say Monday, and you are out of Vac,Sick leave, PTO or company does not offer any, the company is allowed to dock you one days wages. It would be calculated by taking your weekly salary and dividing by average number of days your work usually 5.

      OP honestly the total hours worked over the entire year does not seem unreasonable for a salaried person. 2350 hrs/52 weeks = 45.19 hours per week on average. Most salary people I talk to report that they work on average of 45 to 50 hours per week. Many salary employers tend to see 40 hrs as the minimum that employees should work on an average basis.

      Does it suck that your employer is treating you that way yes, if you can find a better one go for it. But your current employers attitude is not that far out of the norm.

      1. fposte*

        Yes, I think the major distinction point is that the employer can’t choose for an employee not to work in order to save the employer money.

      2. Miso*

        That’s crazy to me. I work 1794 hours a year – and actually less, because I only deducted my vacation time, no holidays or when I’m home sick.
        That’s like 3 months less!

      3. Agile Phalanges*

        Regarding your second-to-last paragraph, I think the LW’s point was that it’s fair to be paid salary when you average out to a “fair” number of hours, and she’s not complaining about that, but about the fact that they’d be docking her pay when the hours are short for the week but not paying her extra when they’re over. So it wouldn’t be the same as getting the same pay every week but working extra some weeks and less other. Her annual salary would decrease because of the docking of the pay, but her hours worked would stay the same.

        1. CmdrShepard4ever*

          The company isn’t docking the pay. They are docking the PTO bank of hours earned. If OP runs out of PTO hours, they can’t dock her pay when she works less than 8 hrs a day, only if OP takes off entire days. I agree for a few hours here and there they shouldn’t make her use PTO since she works so many hours during Oct/Nov.

          1. OlympiasEpiriot*

            Except that PTO is a form of compensation, perhaps not in the eyes of some laws, but it is part of compensation. It is not a perk like having a functioning, clean coffee pot in the office.

            1. ScarletNumber*

              Except that PTO is not pay. Therefore it can be deducted. The law only talks about pay.

        2. fhqwhgads*

          The mindset I generally hear from managers I’ve worked with or know isn’t so much that they’re nickel and diming when people go under but ignoring it when they go over. Rather the thought process is “the salary for the whole year is what we deem reasonable for a whole year’s worth of work” knowing that because it’s an exempt role there will be some busy times and some not-so-busy times, but the assumption is generally, they want 40 hours of work from everyone and they recognize that sometimes people will work more than that, so the salary accounts for that. In theory, in an ideal world. So then when it comes to “well why do I have to use PTO when I work less, given that other time I work more”, it suddenly doesn’t sound so reasonable, because the issue isn’t offsetting the busy times. The math theoretically already accounts for that. So they’re saying, yes, do use PTO when you’re going to do less, because we’ve already accounted for this.

          If the job pays low enough that the employee isn’t satisfied with that, or has little enough PTO that this doesn’t wash out in a way that feels reasonable to them, absolutely negotiate for more (or move somewhere with different compensation/policies if possible and desired). But I think it’s a frame of mind thing. If you know you have a gig with this type of waxing and waning, make sure the compensation…compensates for that? I know it’s easier said than done.

          2. Emily K*

            One small nitpick – salary doesn’t “account for” overtime unless the employee is exempt. Salaried employees are frequently exempt, but not always, and some exempt employees are paid hourly.

            By the logic you’re saying they use, if the salary is about an amount of annual work expected rather than an amount of hours, then being under 40 in a week here or there shouldn’t matter, as long as they’re doing a year’s worth of work over the course of the year. If they know there will be less busy times, then the salary accounts for that – it protects people from losing pay when they work less during those times. Paying people a salary isn’t just a way to get our of paying overtime – that would be illegal.

      4. CJM*

        OP says they have been gone for medical reasons for their kid, and that generally counts against your PTO. If you run out, you don’t get paid for vac/sick days.

        But they say you’re docked if you don’t work 40 hours a week. They don’t say if it’s for sick/vac. It sounds to me like it’s for any reason. Like leaving early because your work is all caught up. I’m pretty sure they can’t do that.

        1. wondHRland*

          If it’s medical reasons for a dependent child, does FMLA apply? If it does, that may also change things.

          2. Librarian of SHIELD*

            All FLMA means is that you can be away from work for 12 weeks and your job can’t fire you for it. There’s nothing in the law that requires that time to be paid. In most of the places where I’ve worked, when you go on FMLA you’re required to use your accrued sick and vacation leave. If you run out of time, you either go unpaid or go on short term disability. FMLA would most likely not solve the OP’s problem.

            1. Half-Caf Latte*

              yes. And in my experience, intermittent FMLA is a way worse hit to your PTO than continuous leave.

              Continuous leave is often eligible for supplemental pay from institutional long term sick leave/state disability/ private disability.

              Intermittent leave can require hour-for-hour use of PTO, and to burn through your whole bank before the time can be taken unpaid.

              I understand the business logic behind it, but man, if anyone needed some vacation time, it’s someone managing a long-term illness.

              1. Fortitude Jones*

                Thankfully, I’ve never worked anywhere that required the use of PTO for intermittent leave for salaried employees. If you’re only out for a couple of hours and you’re making that time up elsewhere, it’s petty as hell to make someone use their time off instead.

      5. Emily K*

        45.19 hours is only the average if there were no vacations or holidays. More commonly the annual hours are divided by 48 to account for 2 weeks of vacation and 10 federal holidays (a relatively common offering). That puts her up to about 49 hours a week on average.

        I’m a salaried mid-level manager and officially my company has a 35-working-hours week (with an hour ‘s paid lunch every day to round up to a 40-hour week total). During crunch times I definitely pull 40-50 hour weeks, but in a normal week I work more or less 35 hours, and an occasional week here or there after a big event or during a slow period I only put in 30 or so.

        Most salaried employees I know average right around 40 a week – 45-50 is a normal amount to work during a busy/crunch period, but that’s usually only a few to several weeks a year. The only people I know who average that much year-round are in notoriously workaholic/high pressure jobs like law and finance and consulting.

    3. Not Me*

      It depends on the state. There are laws stating PTO is earned wages, therefore an employer cannot legally “take back vacation anytime they want”.

      Just because there is no law stating vacation time must be offered doesn’t mean there aren’t any laws governing vacation time. That’s a strange and wrong way to look at this, or any, law.

      1. fposte*

        It’s still the federal law approach to vacation, though; I think that’s all that Sloan meant.

      2. Princess Consuela Banana Hammock*

        Sloan’s not off/wrong if we’re only looking at federal law, though, which is usually Alison’s default. Unless the OP asks about specific state/locality laws or differences, then Sloan’s interpretation isn’t wrong.

      3. doreen*

        And even if we’re not talking Federal law, those states that require companies to pay out accrued vacation time require just that – they have to either let you take it or pay for what you have accrued already. I don’t know of any state that doesn’t allow the policy to change going forward.

    4. Princess Consuela Banana Hammock*

      It’s not driven by the existence of PTO, but it’s still a dumb and demoralizing policy. If they’re going to make people take PTO for going under 40 hours, then give comp time when they’re over 40 hours. The current policy has the effect of ensuring there’s no actual leave.

      Speaking of which—OP, I consider full time to be 2000 hours/year (40 hours x 50 weeks)… because any halfway decent employer should provide at least 2 weeks of vacation + sick leave.

      [To be fair, I can’t remember the last time I only worked 2000 hours. But before my current job, at least I used to get comp time for going over 40 hours.]

      1. Clay on my apron*

        I’m astounded by the variations in “normal” paid in different countries.

        Where I live, 15 days is the legal minimum, plus there are 12 additional government mandated holidays for Easter, Human Rights Day, etc. 15 is considered stingy in a corporate workplace and most big companies offer 20 to entry-level staff.

        At my last job, everyone got 20 days of paid leave, with the option of “buying” an additional 20. I started on 10 extra days and bumped it up to 15, totalling 35 days. When I was approached by another company, I negotiated for the same amount.

        That excludes sick leave which is a separate bucket, also legislated.

        2. WonderingHowIGotIntoThis*

          My understanding is that it’s only the US that has NO federally mandated minimum PTO laws.
          So, yeah, variations across the rest of the world (here it’s 20 days, plus 8 Bank Holidays, but technically, they have to make it 28 days PTO, because some jobs require working on Bank Holidays and time given in lieu).

        3. WinnaPig*

          Are all of the government holidays you reference paid by the employer? Along with the regular earned holidays?

      2. boo bot*

        Yeah, this reminds me of the rules for clocking in and out – if you’re going to round to 15-minute increments, you have to do it so it roughly evens out, so 8:01 – 8:07 counts as 8:00, and 8:08-8:15 counts as 8:15. You can’t set up a system that rounds up 8:01 to 8:15, because that way you’re just docking the employee every time they don’t clock in right on the :00 – there’s no way to even out.

        This PTO system is only rounding one way.

        1. Zathras*

          This is a bit of a digression, but from what I’ve read elsewhere on this blog it actually is legal to have a system that rounds 8:01 to 8:15 every time, as long as it also rounds the employee’s punch out at 5:01 to 5:15.

          1. Princess Consuela Banana Hammock*

            You’re both agreeing! :) It’s true that it has to round both ways so that ultimately it doesn’t disadvantage the employee, but rather, evens out. Boo bot described the test for whether rounding is lawful, and then provided an example of an unlawful system in which the rounding only benefits the employer and not the employee.

  2. Pete*

    There are a number of stories of folks who have pointed this out to management in a very pointed way through malicious compliance. When they call/email or have an issue after making you use PTO – “I’m sorry, I’m on vacation right now!”

    “Flexibility goes both ways. What you are telling me is that I should leave every day at precisely 5:00 and not answer my phone or emails after hours.”

    1. Triplestep*

      ^ Yup, this.

      I work in the building trades and it’s normal to have long/odd hours during crunch times. In my last job, a project culminated just before Yom Kippur. I logged many more than 80 hours during that two-week pay period EVEN WITH a single day out of the office for a religious observance. My manager counted my day out against my PTO.

      I was already job-searching by then, and this was one of the major reasons. This place made salaried people swipe a time clock twice each day along with the non-exempt folks, but of course when we worked long ours there was nothing to show for it money-wise, or even in good will. What places like this save in PTO costs they lose in employee turnover.

    2. Ali G*

      Yup! CEO at my first job went on one of her many tirades (she was a control freak and when something came up seemingly out of the blue she would freak out and end up over correcting), when she didn’t know in advance I was working from home one day (she actually canceled the work trip I was supposed to go on and my dogwalker was not available one of the days I was now home so I stayed home because my commute was too long to leave him alone all day), and sent a scathing email to all staff that there was no more working from home and if you needed to be home just take the day off.
      She emailed me a few minutes later for something unrelated and was not happy when she got my out of office that I wasn’t working that day (it was a Friday afternoon in the spring. I took my dog on a long walk to the park).

    3. Phoenix Programmer*

      Raises hand.

      Story time!

      So sucky manager SM for short was terrible. SM hired a new night shift employee who took night classes and could not work 3 nights a week and then got mad at me when I wouldn’t fill in without a shift differential. Yes the other guy was paid 10% more to work nights while she wanted day to cover his shifts 3/5th of the week!

      So SM came down on me hard because I would occasionally be 5-10 minutes late due to physical therapy (car crash). I was doing PT at 6am to be into work on time but occasionally would be a bit late. However I frequently worked .5-2 hours late each night. So SM came down hard and threatened a PIP if it happened again. I said OK. Rescheduled PT for evenings and started leaving at 5pm on the dot.

      The best part is a few months later SM tried to embarrass me in a leadership meeting about slinking out at 5pm each day. I pulled mock concern and cheeriness “oh what do you mean? We discussed this months ago. I had been doing PT in the morning but that was causing me to be 5 minutes late and you let me know that being here at 8am is vital so now I am doing PT in the evenings and have to leave at 5pm?”

      She tried to backtrack and was like, well you weren’t clear about that being late is fine.

      “Oh no! I wish you had spoken to me about your goals before now. Unfortunately the morning slots are all full and I can’t switch back.” (Which was true those slots were coveted). Her boss literally laughed at SM and said let that be a lesson to not apply policy blindly without a real conversation. SM was sooo mad!

    4. Jennifer Juniper*

      Then they can turn around and fire you for not being a good team player, thus making you ineligible for unemployment.

      Business is like Las Vegas – the house (or company) always wins.

      1. Curlz*

        I don’t think you can lose unemployment for something that trivial. In fact, that sounds like the kind of trivial reason for firing that unemployment is meant to discourage.

  3. I'm A Little Teapot*

    Well, if you’re willing to risk being fired, you can always take the approach of working 40 hours a week year round. Including during busy season.

  4. Governmint Condition*

    In civil service in most of the U.S., exempt employees must still charge PTO for even the smallest amount of time taken (usually requiring rounding up to 15 minute increments). I know of no exceptions.

    Most people where I work think that if we have to charge time like this, so should the private sector. It will be like this until the law is changed so that “exempt” works both ways, whether you are working extra hours, or fewer.

    1. Ask a Manager* Post author

      The law on exempt/non-exempt isn’t really in play — it only covers pay, not PTO.

      But I really hope people don’t think “if the govt has to do it, so should the private sector” because given how crappy many govt labor practices are, that would probably destroy our workplaces and economy.

      1. Emi.*

        Well, if you’re out of AL/SL (or aren’t eligible for sick leave) you have to take leave without pay, as far as I understand.

        1. I hate the offseason.*

          If you are a fed and out of AL/LS, you can request advanced leave, but only up to the amount of leave you can earn for the remaining pay year (no carry over.). Of course, it is up to each supervisor to approve. If you are out of AL and SL, you may be able to qualify for leave donation, where another employee can donate some of their AL to help you out. Usually used when someone is undergoing long term treatment.

      2. Governmint Condition*

        I will admit it’s more the reverse, where they think we should be able to do as the private sector does. But when people have resigned themselves to believing that the government will never change its policy, they start thinking in different ways.

        1. Fiberpunk*

          As someone who has worked for almost 20 years in government, those people don’t seem to understand the paradigm. There are always trade-offs.

      3. TootsNYC*

        yeah, the goal should be to make our government treat our workers as well as we require private companies to.

      4. Emily K*

        Yeah, I don’t want anyone coming for my office’s free snacks or holiday party booze budget as an irresponsible use of funds!!

      5. Helena*

        The federal government often imposes this rule on their contractors, too, so if the OP’s workplace earns their money from federal contracts then they might not have a choice.

    2. Emi.*

      Sort-of exception: your supervisor can let you leave up to 59 minutes early, and higher officials can give you more (our director sometimes gives us 4 hours the day before a federal holiday).

      1. Governmint Condition*

        Where I work, not even the highest elected official of our government can authorize uncharged leave of any kind.

        1. Not All*

          Then where you work is the exception, not the norm for federal civil service in the US.

            1. RUKiddingMe*

              That makes a difference. AFAIK fed rules are fed rules are fed rules, but state, city, etc government employers can make their own rules.*

              *As long as they comply with fed worker protection, min wage, etc rules just like any employer.

        2. Thankful for AAM*

          Same for our city Gov jobs. Rules! Everyone punches in and out and anyone non-exempt is late at 1 minutes late. 4 a yeat and you have to go splain yourself to HR.

      2. Justme, The OG*

        Yes, I’ve had boss and great-great-grand boss let people out early with the understanding that it would not need to be reflected on our timesheets.

    3. schnauzerfan*

      You mean federal employees right?

      I’m a salaried state government employee. We are not allowed to take less than 8 hours of leave (either sick or annual) If I work thru lunch, or leave late that’s fine. No comp time earned or anything, but if I need two hours to go to the dentist or to wait for the plumber, that’s fine too. No mechanism to take leave even if I wanted to.

      1. bottomless pit*

        Same here. Work for county government, exempt employees can only take leave in full day increments.

      2. Justme, The OG*

        Interesting. I am also a state employee and this is not my experience at all.

        1. Lynca*

          Yeah mine as well and I’m salaried, non-exempt. We can take leave in pretty much any increment we want.

    4. I GOTS TO KNOW!*

      “I have to suffer so everyone else should to” is a pretty crappy outlook on life.

      Part of working for the private sector is having different benefits than government. Some better, some worse.

      For the OP, I would definitely push back on this because what matters is * her * place of employment, not everyone else’s.

      OP, the best way I have framed hourly and salary for people who have outdated ideas about butts in seats for exempt positions (before anyone says anything, it isn’t hard and fast, as there are definitely exceptions) are that hourly employees are paid to be somewhere for a certain amount of time. Receptionists have to be at the front desk. Customer Service Reps have to be at the phone. Salaried employees are paid to produce specific output, regardless of time or location.

      OP, your place of employment regularly requires 70+ hour weeks for a few months with no added compensation or benefits, but wants to nickle and dime you for small increments of time in other months. That’s crappy. Are you meeting your goals? Is your output what it is supposed to be? That is what should matter. As I said, I would definitely push back and definitely find a group if you can.

    5. Cog in the Machine*

      In my agency, if we need to work over 8 hrs a day (or, gasp, on weekends), we can be eligible for credit leave or comp travel, depending on the circumstances. Getting actual paid in cash overtime pretty much takes a literal act of Congress

    6. fposte*

      Are you just talking federal? Because we have civil service categories with more leeway than that at my state employer. However, I agree with your underlying point that government-related exempt employment tends to mean there’s a big thumb on the scale when measuring out time worked.

    7. dramallama*

      I’ve worked for a few federal organizations, and as far as I could tell it was all maxi-flex, all the time. Based on how I remember entering my time I could definitely see needing to use PTO to cover a 15-minute gap, but it honestly never came up. Everybody was so over-worked that they were all sitting on stockpile of comp time.

    8. Librarian of SHIELD*

      I’m a government employee as well, and my organization is of the mindset that an exempt employee should put in at least 80 hours on their time card for each two week pay period. In practice, this means that if I’ve worked 9 hours on Monday, 9 hours on Tuesday, and 9 hours on Wednesday, then take a sick day on Thursday, I’m only required to put in 5 hours of sick leave, because that makes my hours come out even. Depending on what government agency you work for, the rules and the practices will be different because there’s no federal law to guide the practice.

    9. The Man, Becky Lynch*

      “If we [government workers] have to charge time like this, so should be private sector.”

      Yikes. Yuck. Yikes. The government makes all the decisions here. They made our labor laws for the private sector and then they exempt themselves and make their own internal ones. So anything that’s unfair or off-set from our private sector ones is all the government’s fault, not anyone else’s.

      Nobody is making anyone work for the government, they are welcome to join the private sector. You can also join us in the fact termination is super easy for an employer with a hair up their butt and that we may or may not get paid equally, depending on who is the person in charge! So there are trade offs on both sides but yeah, no. Thankfully this kind of thinking is always done by the people who have no authority and are just wishfully throwing ideas into the wind because they’re unhappy about their situation and want to make it everyone elses problem too so they feel better.

    10. Holly*

      Not civil service, but government jobs even in my state vary so much. When I worked for a municipality, I worked extremely long hours – double or over double 40 hours – and received no comp time just set vacation hours that you accrue, no bonus for working late, you’re just doing your job. Working for the state now I get comp time and it’s up to my boss how we get to use it and it’s extremely generous.

  5. Rachel*

    If this LW is eligible, they should perhaps consider applying for FMLA regarding their child’s care. That won’t solve the problem of an inflexible employer the way that generous flex time and more understanding policies would. But it will protect their job if they reach a point where the PTO doesn’t cover the time off they need for their child’s care.

    2. The Man, Becky Lynch*

      FMLA is for companies that are 50 or more employees. The OP says they have 5 employees.

    3. Holly*

      Dropping a note here that OP (and this is an evergreen comment) should always check their state laws. New York has its own paid family leave program, for instance, that does not have the same company size restriction.

  6. Exhausted Trope*

    I worked for a business that was exactly like this and it ticked everyone the hell off. My team was exempt salaried and regularly worked many hours over to meet deadlines. But anytime we needed to leave early for anything, we had to take PTO hours or be docked pay. Still p.o.’d about this and it’s been 7 years since I was there.

    1. Close Bracket*

      Isn’t it illegal to dock the pay of exempt workers? I also thought that there were definitions and rules in place such that working any part of a 4 hour period is considered working the entire 4 hour period and working whatever number of days in a week is considered working all the days in a week, so if you work 6 hours, legally, you have to be paid your full salary.

      IANAL

      1. CJM*

        From what I’ve read here today, it sounds like it depends on if you “need”9 to leave because you’re sick, or “want” to leave. They can’t dock you pay if your available to work, but don’t.

        If I’m wrong, somebody please correct me, because I would really like to know the rules regarding this.

        1. fposte*

          Close Bracket is right–it’s not legal to dock the pay of an exempt employee for a partial-day absence. (An employer can, however, require the use of PTO for that absence.)

          Sometimes things get confusing because people use the word “dock” in both cases; IMHO it only really applies to pay. However, from what Exhausted said, they would indeed dock actual pay, not just PTO.

          1. Sloan Kittering*

            But what if they’re out of PTO, that’s the part that confuses me. In my office, if you run out of PTO you have to take unpaid leave. Can they make you take a half day unpaid under this logic?

            1. Gaia*

              If you are exempt and you run out of PTO your employer cannot dock your pay for partial day absences, only full day. If you work any part of a day you MUST be paid for that day.

              They can, however, discipline you for taking time off when you don’t have sufficient PTO. They would be crappy to do so (unless the role requires physical presence and/0r there is a serious, repetitive issue that is actually impacting the business), but on the right side of the law.

    2. Alanna Maeve Connor*

      I worked at a place where I worked a 12 hour day and then the next day needed to take a tw0 hour lunch for boring reasons and had to use PTO. Still mad too.

  7. Lily Rowan*

    One of the many ways I knew my boss was a good one was when she rejected my request for a couple of hours off — because she didn’t want me to use PTO for it, because she knows I put in my time/get my work done!

    1. Gaia*

      That is how it should be for exempt workers. I actually have started asking about this early in interviews along with broader conversations about flexibility and benefits. I’ve reached a place in my career where I can be pickier and I’ve decided I want high flexibility (currently I work remotely full time and LOVE IT) and I do not want my PTO docked for partial day absences. They pay me to get a job done and I am more than happy to be flexible to meet the business needs. I expect them to be flexible to meet mine.

  8. NYC Nonprofit*

    Question as I’m also learning about this too — if the OP ran out of PTO throughout the year and worked less than 40 hours in a week, their pay still could NOT be docked, right? An employer can require you to take PTO to meet a certain number of hours, but can’t dock your pay in the event that you don’t have enough PTO. Please correct me if I’m wrong!

      1. CM*

        Ooooooh. This was my question, too, and now it makes sense why people are angry about being charged PTO when they need to leave early. That’s messed up.

  9. Bee Eye Ill*

    Question for the OP – I am also salaried and when I go under 40 hours a week, I have to use Vacation time (we don’t have PTO – but separate Vacation and Sick time accruals) BUT if I go over 40 hours, I get comp time. We are required to use comp time before Vacay or Sick, too. Do you get comp time?

    1. Bee Eye Ill*

      Never mind…I just missed that in the first paragraph. Perhaps you should negotiate for comp time then. It technically costs the employer nothing.

      1. Auburn*

        As far as I know in the US salaried exempt employees can not legally negotiate formal comp time policies. That would only apply to salaried non-exempt employees. Having a formal comp time policy is one of the things that would be considered in an employment audit and could force the company to reclassify everyone.

        1. Aitch Arr*

          This is incorrect.

          Non-exempt employees (salaried or otherwise) are not allowed to receive comp time. They must be paid for hours worked, full stop.

    2. Lucette Kensack*

      She said that they do not: “… as a salaried employee I don’t get overtime or comp time for those hours worked.”

    3. TootsNYC*

      Though I can see a comp time policy not helping her much.

      I decided to insist that my people use up comp time within just a couple of months of earning it.

      It was getting too hard to factor in extra vacation days when they would save it to tack it onto PTO. And it was too hard to track.

      And my reasoning was, the comp time is intended to make up for the fact that we made you work late, made it harder to keep up with chores or see your friends, and for making you feel stressed. It was supposed to mitigate the resentment you might feel at having been burdened.
      I wanted you to deal with chores, and have time or energy to rebuild relationships, and to feel less stressed, closer to the time we created any negative emotions. I guess I ran the risk of making people resentful that they didn’t get more vacation days to save up (though I often suggested that they tack two of them on either side of a weekend), but I still felt my approach was right for us.

      That wouldn’t necessarily help the OP (though under my system, she could use the comp days to deal with her son’s medical issues instead of PTO, and then she’d have PTO for other times of the year).

      1. The Man, Becky Lynch*

        I dislike your system very much. That is again putting too many demands on someone who is tasked with 70 hour weeks for 8 weeks out of the year. So you’re going to demand she take 240 hours of comp time accumulated there within two months? Do you just want to give her a month off after the stretch? So she’s not robbed of that extra banked time?

        Instead it’s banked and used as she needs in the other 10 months of the year that’s much slower.

        It works if you have a couple late shifts here and there and it’s minimal time but for something so huge as having 30 hours of comp time a week, that’s asking a lot.

        I don’t police our employees comp time, vacation time or comp time. I just let them use it as they see fit. They have caps on how much they can roll over, so it’s a use it or lose it in the end. But it’s a high cap, it’s there to push people to take time off at some point because they are encouraged to keep their work life balance harmonious.

        1. Kaitlyn*

          Yeah, I can see this system working if it’s examined quarterly and the boss isn’t pushy about it. I don’t mind working huge hours in December if I know I’m getting them back in February.

          And yeah, sometimes the answer is you do give people a month off after the hard stretch. My sister used to do 20 days on in the Alberta oilfields, and her days were 12-15 hour days; she was paid for 8 and given the other 4-6 in lieu time that she used when she got back. It wasn’t uncommon for her to do a six week cycle: three weeks in the field, a week in the office, and then two weeks back home in Ontario.

        2. Jasnah*

          In the non-US country where I work, this kind of thing is very common; I had to use my comp time within the month, or within the quarter, use-it-or-lose-it. Often it’s to keep employees from building up too much overtime and overworking or burning out.

          I agree it wouldn’t work as well for OP or other jobs with a longer busy period and slow period, but the period of time comp time can be saved could be lengthened or shortened to accommodate the needs of the role and to encourage employees to take time off.

      2. Hey Karma, Over here.*

        Maybe it’s because I’m salaried non-exempt, but we can choose comp time or over time, but comp time has to be used in the same week. It isn’t something we can carry over, much less store up.

        1. Arjay*

          Yes, because if you work more than 40 hours in a pay week, you must be paid overtime. But if you work 10 hours on Monday and only 6 hours on Friday, that keeps you at the 40 hour limit. (Unless you’re in California or a jurisdiction that requires overtime for more than 8 hours a day regardless of the weekly total.)

      3. Samwise*

        Ugh, I had a boss who did this. I hated it. Deeply. It was not always possible to take the time off quickly enough because we’d be busy for stretches. Why not let me accrue it and get a some extra days to tack onto a vacation? How is that harmful? Why do I had to use the time in a way that you the boss think it should be used for (chores, relieving stress, spending time with friends) and not how that I the employee wants to use it (say for a travel day so that my vacation is five full days at my destination). And really, it’s not that hard to keep track of it. Put it in a spreadsheet, or you can go low tech and write it in a notebook.

    4. Hamburke*

      I worked for a gov contractor many years ago as salaried exempt. Our comp time policy was that it had to be used in the same 2 week pay period, couldn’t be carried over. I think the laws are different now and my former employer probably couldn’t get away with our every other Friday or Monday off during the summer… That was a great policy! Now, I work part time so I have all Fridays off!

  10. The Man, Becky Lynch*

    This is how salary can be a double edged sword, it depends on the employer and their practices. It’s why I never want to be salaried again after being taken advantage of previously, in much the same way that you’re dealing with now.

    You are most likely hired in at a baseline of 40hours and therefore they have obligation to allow you to work less than that. If you’re exempt and run out of PTO, they’d still legally have to pay you and not just make you take a couple hours here and there as unpaid, despite their “rule” to use PTO. However they can then use that to terminate your employment since you’re absences and not adhering to the 40hrs set up. So yes some places will drain your PTO like that and then be all “Okay no more time off or there will be disciplinary action taken!”

    1. Sloan Kittering*

      Yeah, between this and companies that make you get permission to use time off (and thus you can’t actually take the time they say you have) there are scenarios in which it’s better to just be paid for the time you work.

      1. Jennifer Juniper*

        I thought almost all companies required you to get permission to use time off, unless you’re in the C suite.

    2. BRR*

      My most recent employer was my first where I was exempt and their philosophy was to allow some flexibility and it was great for morale. I’ve worked other places where exempt means 40 hours minimum and there’s not one person who doesn’t notice the flexible hours don’t go both ways.

      1. The Man, Becky Lynch*

        My experience soured me greatly because the rule was only imposed on me, the workhorse of the organization. Every other exempt individual was given massive leeway and not dinged. Except for me, which was always extra ridiculous since we didn’t keep timecards, so the person “in charge” was just militant about when I came and went. They were awful people to their core though.

        Now I deal with it myself being back in the full operating payroll function and we do track hours and everyone gets comp time when they work over 40 hours or whatever the week is scheduled for [so holiday weeks, if we’re working 32 hours, they get anything over 32 hours as well]. So it’s taken some of the bad taste out of my mouth being in a place that does it the best way I’ve seen. But yeah, I like my OT a little too much. It’s not frequent but those days I do need to pull a long week, it’s satisfying. But I also like money vs time off too, I’d work 70 hour weeks forever if I was getting paid as non-exempt, haha.

      2. TootsNYC*

        I’ve been exempt/salaried always, and always had the flexibility. Of course, I also always had a job in which there would be late-nights once a month, so the idea that we were frequently giving more, in terms of time, was crystal clear.

    3. fposte*

      If you’re exempt and run out of PTO, they are *not* legally required to pay you for subsequent time off–that’s one of the times where it’s legal to dock the salary of an exempt employee.

      1. The Man, Becky Lynch*

        Only if it’s for a full day though. See Alison’s link up above.

        They can’t dock you individual hours.

          1. The Man, Becky Lynch*

            It’s one of those things a good employment law attorney beats into your head when you discuss exempt positions, lol.

  11. Peridot*

    Any place that expects you to work 70-hour weeks on a regular basis and does not reward you in some way for that (PTO, comp time, raise, recognition, whatever you value) doesn’t deserve you as an employee. I hope you can find something else, because I know so many people are trapped in those kinds of situations.

    1. CmdrShepard4ever*

      But it is not on a regular basis it is for about two months (October and November) out of the year. If you take OP’s hours 2350 for the year it averages to about 45 hrs per week, 45 hrs per week is not an unheard of amount to work for a salary employee. I agree the company should not be counting leaving an hour early or coming in an hour late for PTO, but it is not unheard of for many companies to do this.

      2. The Man, Becky Lynch*

        It’s not about the hours in the end, it’s about how you treat the employees as a whole. It’s also worse on your body and mind to work at high amounts of hours for spurts. Just like it’s worse on your body to rotate schedules since you never acclimate properly, unlike a profession that has you working a steady 70hr week at any given time.

        They’re asking a lot regardless. I do wonder what their pay rate is too. Since maybe it’s a great pay rate if you’re working 40ish hours a week but two months of 70hrs will drag you down to a much lower per-hour rate if you shake out all the numbers. Which was my case. If you calculated my hourly rate back then, it was a dollar or two above what our support staff was doing, who was only allowed 40hrs tops because oh no, the devil OT issue. So the person without OT issues had to take over after they capped out.

      3. Peridot*

        Two months every year is regular, to me. It’s an expected part of the business and they can plan for it.

        The total number of hours sounds fine when you average it, but OP isn’t able to work it that way.

        1. CmdrShepard4ever*

          For OP it is an expected part of the business (similar to tax accountants) OP said that the 70 hour work weeks happens every October and November. It seems that the rest of the year it is mostly 40 hour work weeks or less if you take PTO. Again do I think the company is being crappy by making OP use PTO for an hour or two here and there yes, but the company is not way outside of the norm.

      5. Delphine*

        It’ll be far more than 2350 for the year when the employees are expected to be at their desk in the not-busy season for 40 hours a day…

  12. Entry Level Marcus*

    While the spirit of being salaried means “you get the job done, your hours don’t matter”, it seems like in practice (in the US) being salaried usually means “you must work 40 hours a week no matter what, but we get to make you work overtime for no extra pay or comp time LOL”. Maybe they let you go home a few hours early on a slow Friday or go to a doctor appointment without using PTO, but those don’t seem like they come close to the overtime and flexibility you give them in return.

    It seems pretty crappy, and as I’ve entered the workforce I’m beginning to wonder why anyone would take a salaried private sector job if they have the option to be hourly. It seems like a bad deal.

    I’m curious if anyone has had a job where the flexibility of a salaried position truly went both ways?

    1. Peridot*

      My last job was a pain in many ways, but my manager was generally very good about people leaving early for appointments or childcare issues or needing to work from home. The flip side of that is when a software release was imminent, you were probably going to have some 12-hour or 14-hour days in there. But since that was only a few times a year, and the job paid well, it was a trade-off I was okay making.

      1. Entry Level Marcus*

        Would he let you leave early if you just happened to get all your work done early, but didn’t have any other reason to leave early? Or did you have to sit around doing busywork/pretending to work?

        1. TootsNYC*

          well, in most salaried positions I’ve been acquainted with, there is ALWAYS work to be done. You’re seldom doing busywork. You’re just doing something administrative.

            1. CJM*

              As a CPA, they were days after tax season that I spent hours commenting on columns like this, and playing solitaire.

              Knowing that other commentors on these boards work, and seeing the times that they comment multiple times a day, I know I’m not the only one.

              It’s actually a frequent joke commentors make.

        2. Peridot*

          There was never any period where all the work was done, really. But if I said, “Hey, I have this big thing to work on, but I’m waiting for Person A to finish their part, so I’m going to head out now and get started on it tomorrow,” that probably would have been all right. Not on a regular basis, but every once in a while.

          As an entry-level employee (I’m guessing from the username), you might not have that kind of environment, and there might be times where you have to resort to busywork. I think it really depends on the industry and general environment of the place.

          1. Entry Level Marcus*

            Well in my case I’m currently a salaried government employee, so things are different. I need to use PTO/comp time/sick time for every little bit of time I take off, but on the flipside I get comp time for all overtime worked.

            I’ve never had a private sector salaried position (though I might in the near future) so I don’t really have a strong sense of norms around salaried employees.

    2. Anonymeece*

      Mine is pretty good. During our busy seasons, I’ll regularly work 60 hour weeks, but my direct supervisor, at least, is pretty good about letting us take comp time to make up for it. Even within a week, if I can say, “Hey, I stayed really late Monday and Tuesday, can I come in late on Wednesday?”, or within the same day, “Hey, I need to stay until 10 PM tonight, so can I come in at noon?”, she’s pretty flexible, as long as it doesn’t interfere with a scheduled meeting or something.

      I work in academia, and like I said, that’s just for our department; it’s “up to the discretion of the supervisor”, so it could change at any moment. You can bet I’d be frustrated and job-hunting if a new supervisor came in and decided it was a one-way street.

    3. EAS*

      I’ve had multiple salaried, private sector jobs with plenty of flexibility. In a good company, you are treated like an adult and are judged on the work you get done, not the hours you spend there. Every week looks different for me, but I am free to arrive and leave the office on my own schedule, set my own work-from-home days and my current company has an unlimited PTO policy. I know this isn’t everyone’s experience, but I’ve specifically looked for companies and supervisors who embrace a work/life balance.

    4. Lemmy Caution*

      Well, I am in UK and salaried and I have signed a ”management agreement” I can exceed the ”health and safety” mandated weekly hours if required. But then again I don’t need to ”clock in” and company hour sheets and the customer billing timesheets are more or less totally illegally ”fixed” to show any auditor a vanilla 37.5 week with 1/2 hour lunch.

      But I don’t get or take too much crap… I worked 11 years in a similar position in a mainframe/unix server department so people would come in to do batch jobs at 03am and nobody even dared to micromanage us… you don’t want the wrath of the Lords of Cobol.

    5. BenAdminGeek*

      Mine is very good in this regard. Always subject to change, but in slow seasons I work what I work, in seasons I’m here 60+ hours. My boss is supportive. It also helps that we have tools for making virtual work easy- so if I’m taking a non-PTO half-day but can check email sometimes in case an urgent matter arises, it works well.

    6. Elbe*

      In my experience, most people usually take this strategy: “Or you can ask for a salary that’s high enough that it feels like a fair trade for the number of hours you’re working, even without additional flexibility or time off.”

    7. emmelemm*

      I mean, I’m in a position where it definitely goes both ways, but it’s a bit of an unusual position and I’m in a company of 5/sometimes less employees, so a lot of “rules” don’t apply.

      If I have a doctor’s appointment, I go. If I want to leave early because I’m hosting my book club and I need extra time to get ready, I go. If I need time off, I take it. On the other hand, if we’re bumping up against a deadline, I’m here til it’s done. And there really is no one else who can do it.

    8. SusanIvanova*

      Silicon Valley. All the top-tier places understand how engineering works – some days are busy, some days aren’t, and it’s the final deadline that counts, not amount done per day.

    9. Alex*

      Yes, but I’m not American or private sector, so that may have something to do with it.

      I work a theoretically 37.5 hour salaried job (lunches are unpaid, two quarter hour paid breaks are included). In practice, over a quarterly cycle, I can split it pretty evenly into a busy third, when I work closer to 50 hours, a standard third, when I actually am doing the 9-5 thing, and a quiet third, when I rock up late and leave early most days.

      Also, if there’s a particularly busy week and weekend work or very late evenings are required, time off in lieu (TOIL) will be formally recorded and I can take that whenever I have time to.

    10. hermit crab*

      I do! I work for a big nonprofit. We don’t have a busy season per se, but I routinely work late/weekends and just as routinely skip out for an appointment or, like, don’t go to the office if I get home from a business trip at 2pm on a Friday. We are only supposed to take PTO for increments of a half day or more. I know that some of my fellow salaried/exempt colleagues track their hours for their own personal records but I left consulting for a reason and definitely do NOT. :)

    11. Samwise*

      We have a new structure and new managers who are super committed to flexibility in work hours to the extent that the work allows it, especially since raises depend on the state legislature / budget. So far it’s been working well. As long as no one abuses it, I’m hopeful.

    12. Ella*

      My current job the flexibility goes both ways. We have a set amount of work we have to get done every week, and it will definitely sometimes push you over 40 hours a week, especially during our busy seasons, but we have an extremely flexible work from home policy and a lot of leeway to go to appointments, etc. during the day as long your schedule is clearly communicated to the team and you’re not missing meetings or deadlines to do so. We also do get given informal comp time if we end up working outside of normal business hours, largely to avoid moral problems if someone has to provide occasional weekend or early morning coverage.

    13. Eccentric Smurf*

      Two out of my three professional jobs were flexible both ways. One was a small businesses with about 50 employees and they didn’t bat an eyelash if you needed to leave 2 hours early for an appointment because they knew you worked long hours when the need arose. Another was a company with about 2000 employees that only applied PTO in four or eight hour increments. Any time off below that threshold was a ‘freeby’ because they figured it all came out in the wash since you worked long hours or holidays when needed. (Holidays were rare, but the possibility was there.)

      The company that was inflexible had low morale for so many reasons. They claimed to be flexible, but that only applied to certain people and even then was at the whim of department managers, with the ‘rules’ being mostly unwitten. Their approach to time off was just one symptom of a really poor culture.

    14. miss_chevious*

      I’m curious if anyone has had a job where the flexibility of a salaried position truly went both ways?

      I do. I’m a lawyer at a large company, salaried, and while we do work more than 40 hours often, we are also allowed a great deal of flexibility in terms of scheduling, we aren’t nickle and dimed over PTO (we can leave for appointments, etc., without using PTO or sick leave), we don’t have to punch a clock, and we are encouraged to have work-life balance. We also have a very flexible work-from-home schedule that each employee gets to determine based on their job needs (in the legal department — I can’t speak to the business side).

      Is it 100% balanced every pay period? Probably not. But we are well-compensated and treated like adults, because the company recognizes that turn-over in our roles is a huge cost and doesn’t want to lose good people over nitpicking 2 hours of PTO for a dentist appointment.

      1. Parenthesis Dude*

        I do. My manager doesn’t care how many hours I work as long as my work gets done. It helps that I’m always willing to take on more work if asked (or if I can find something), am doing a few projects in part of my time that a number of other people failed to do as their sole project, and am willing to work late if a task requires it.

        But I’m working closer to 30 hours a week than 40.

      2. DONTUNDERSTAND*

        I am salary, and if I work 40+ hours in 4 days and have a day off, I have to take PTO for that day – I understand that if I work less then I would have to take PTO, but don’t understand why if I work 40 hours, I only get paid 32 regular hours and 8 PTO.

    15. Dagny*

      I do, but I took a pay cut and have a long commute for it.

      But when I have a doctor’s appointment and get to (a) work from home and (b) take two hours off in the middle of the day, it’s worth every mile of my 55-mile each way commute.

  13. TootsNYC*

    I remember once asking an employee in my new department (I was hired in as department head) for her extra hours worked so I could figure out her comp time (we worked lots of extra hours during each month’s week-long crunch time).

    She handed me a list that included 15 minutes on one day and 30 minutes on another. Plus 4 hours and then 6 hours on two other days.

    I sat her down and said, “I’m not giving you comp time for that. The way you get comp time for that is, you take a long lunch with a friend during the slow period. You come in late because the locksmith is coming. I’m not going to nickel and dime you over things like that. So I expect you to NOT do the same to me. If you’re going to insist that I should compensate you for 15 to 30 minutes here or there, then I am going to be the same kind of stickler on the front end. And that’s just too damned much work. Plus that’s not the kind of world I want to work in.”

    It needs to be the same on both sides, or it’s “asshole” territory.

    1. TootsNYC*

      (oops–realized I wasn’t clear: I wasn’t giving comp time for 15 and 30 minutes. Yes to comp time for the larger blocks)

    2. Samwise*

      Hmm, but it sounds like you asked her? And, if you were new, maybe this is how it had been done before? Maybe I’m misreading, but it feels like you were harsh unnecessarily?

      1. LQ*

        It could just be the language used but this feels like exactly the conversation I’d want from my boss in this kind of situation. Clear, direct, actionable. Honestly this sounds perfect.

      2. Julia*

        This. That’s literally how it works at my job as well – you write down even 15 minutes of overtime, and you can take those off some other time.

      3. General Ginger*

        Yeah, I don’t understand this, either. Employee was asked for their extra time worked, they provided their extra time worked. Were they supposed to pretend they didn’t work those 30 or 15 min extra?

        FWIW, 4+6+.5+.25 is 10.75 hrs, I don’t see how it’s extra work to record 10.75 instead of 10, or why it’s a better solution to round the employee’s extra time worked to 10.

        1. boop the first*

          Also if this employee is 10 mins late because of a locksmith, they’re not going to record staying an extra 10 mins to make up for it because the extra 10 minutes isn’t actually extra. Unless the point of this is that they’re NOT staying the extra 10 minutes to make up for it? But are they? Does the boss know, or is it just an assumption that they’re leaving on time/early anyway?

  14. incompetemp's colleague*

    I’m Canadian and as far as I know, this whole exempt/non-exempt thing doesn’t exist here, and it infuriates me to see people getting abused like this. I absolutely cannot wrap my head around why anyone would accept to work under those conditions – let alone EVERYONE who does.

    You work overtime without pay, and if you work fewer hours they can force you to take your precious vacation time? That’s barbaric.

    I don’t really have advice, just sitting here shaking my head wondering how the heck that kind of system was put in place and is allowed to continue. Boggles the mind.

    1. TootsNYC*

      money. The people (stockholders, etc.) who have it don’t want to pay it in salaries.
      The U.S. also has some icky “you should be grateful to have a job” thing going on too.

    2. The Man, Becky Lynch*

      There are instances where it makes sense, when it comes to highly compensated individuals and licensed positions [think CEO and Doctors, Lawyers, CPAs]. It’s for recordkeeping streamlining. It’s like “we’re paying a quarter million dollars a year, do you really need to punch a clock or document your time spent in and out of the office, probably not.]

      Then it got taken to the extreme and advantage by those business professionals who will indeed stretch those loopholes as far and wide as humanly possible. So it’s a great idea but yeah, it’s taken great advantage. And my biggest complaint is more that the labor boards are stretched thin and cannot just watchdog these places more often. That means higher taxes though and the same people taking advantage of these workers are the same ones in the politicians back pockets, who are getting these loop holes added.

      1. incompetemp's colleague*

        That does make a bit more sense. Yeah, if you’re making hundreds of thousands of dollars, I’d expect the person to earn it. But it seems like the people on the end of the food chain are always the ones getting screwed over with this.

        1. The Man, Becky Lynch*

          The problem is coming to an agreement about what “highly compensated” means as well.

          There’s a minimum weekly salary amount. And it’s garbage. They tried raising it and there was hell on Earth down here, it got stuck up in legislature because of course it did.

          Just in case you weren’t angry enough *pours gas on the rage* Sigh.

          2. Antilles*

            Just to put some numbers on the debate, the current minimum salary amount to be considered “exempt” is just under $24,000 per year. This is also known as “less than $12/hour” or “wait, isn’t that only a little above minimum wage?”
            There was some momentum to almost double the value up to ~$47k back in early 2016, but it got delayed in court in December of 2016, then the new administration basically let it die quietly. Earlier this year, the government newly proposed a threshold of $35k (higher than current, but not as high as the 2016 proposal)…but until it actually gets finalized, who knows whether that’ll stick or not.

            1. The Man, Becky Lynch*

              TY for the numbers.

              I knew it was obscenely low. It goes well with the other post about the raising of minimum wages.

              It’s currently at just about double the poverty rate for a single person household. How cute. Ick.

      2. LQ*

        It’s odd, I look at this and go most doctors, lawyers, and cpas likely need to bill their time to someone so they are punching a clock of some kind anyway.

    3. Entry Level Marcus*

      My theory: it’s a mix of a lingering puritan work ethic culture, many people just accepting it because they don’t realize things could be different, a weak union movement, and a presidential system of government (rather than parliamentary) that makes it a lot harder to pass sweeping new legislation.

      1. incompetemp's colleague*

        RIGHT. I always forget unions aren’t as big of a thing over there.

          1. The Man, Becky Lynch*

            And awful shameful unions that are allowed to taint unionizing for others. There are unions for grocery store workers and guess who still ruins your life via the lack of scheduling so you leave game…and the union is like “oh yeah, our CBA really doesn’t address that so you know, whatevs and all that.” They’re happy to take those dues every paycheck and hey, they negotiated so you got a longer lunch! They totally capped out your earning potential but a longer lunch! Cut rate unions are like cut rate watered down gas.

            1. Curlz*

              Unions are completely customizable, though. You don’t have to latch on to the cookie cutter unions; you can build a union with your fellow employees with your own CBA that suits the needs of your industry and the desires of the employees. The idea that there’s a universal set of demands that all unions require is false anti-union propaganda.

      2. The Man, Becky Lynch*

        It’s that deep rooted “We The People would NEVER think of such Socialistic Things. Down with the socialism!!!!!!!!”

        I remember decades ago when my dad worked for a company that was unionized. And the bosses plastered posters for the candidates who opposed labor unions every single election.

    4. Jenn G*

      Uhn I work in Canada and I don’t get overtime. “Managers and supervisors do not qualify for overtime if the work they do is managerial or supervisory. Even if they perform other kinds of tasks that are not managerial or supervisory, they are not entitled to get overtime pay if these tasks are performed only on an irregular or exceptional basis.” <– this is basically the same

        1. boop the first*

          By observing my managers past, it’s the same in BC. I’ve never seen them clock in, and they usually hang around at odd hours so… I’m surprised to hear someone say they’ve never heard of exempt workers in Canada.

  15. agnes*

    oh, this hits a painful nerve here. I worked for a manager and had several people that I managed. He insisted on making people take PTO for even an hour less than 40 but never gave any consideration for all those 50 hour weeks that so many of us worked during the busy season. He was fond of saying “your job is AT LEAST 40 hours per week.”

    God I am glad I don’t work there anymore.

    1. Lynn*

      My mom was a manager and felt the same way. She was shocked to learn that I am free to come and go as I please most days because my boss knows the work will get done. When there are times when I work late and on weekends, it’s very nice to know I have that flexibility in return.

    2. Mr. Bob Dobalina*

      Agnes, yes, all my exempt salaried jobs have been viewed as “at least 40 hours” and all those jobs took more than 40 hours to get the work done. Lots of jobs out there like that. :(

  16. austriak*

    In my experience, this is pretty standard. You either work at least 40 hours or you make up for anything less with PTO. The only exception is that I worked at one place where you could accumulate up to 40 hours to take off later if you work overtime.

    1. FairPayFullBenefits*

      +1 Just posted about this below, I also thought this was pretty standard.

  17. Elbe*

    I’m curious as to what they mean when they ask her to “work” 40 hours per week during a slow season. Are they just expecting her to be at the office? Or are they giving her tasks that are not part of her actual job to fill her time?

    I work for a place where working about 40 hours a week is expected, but we don’t get paid for overtime. That’s common in my industry. But, because the work tends to be in peaks and valleys, employers are generally not strict about letting you occasionally check your email or surf the web. If you’re getting all of your work done, it’s okay that you have some downtime while you’re in the office.

    If they’re giving her additional tasks to fill her time, she could reasonably make the argument that she’s working more than one job. I don’t think that there’s any legal way to make them stop doing this, though, so she should probably just focus on her job search.

  18. Thornus*

    Related, could we get a post summarizing and explaining the fluctuating work week rules that allow OT to be paid at only half, not time and a half?

    1. The Man, Becky Lynch*

      I’m not following your question?

      What do you mean rules that allow OT to be paid at only half and not time and a half? OT is always at time and a half rating if you’re a non-exempt employee. If you work OT and you’re non-exempt, you are paid time and a half, there’s no circumstances that allow you to pay less, the OT law is really cut and dry. Over 40 hours in a work week is OT, in California over 8 hours in a day is OT as well unless you have a CBA in place.

      2. Thornus*

        Google fluctuating workweek overtime. It’s an alternate method which, based on my understanding, pays non-exempt workers a base salary then any hours over 40, if the worker’s number of hours fluctuates each week, at 1/2 the hourly rate of the weekly salary divided by the total hours worked that week.

        It might just be a math trick to get to 1.5 the weekly hourly rate, but I know it’s often referred to, if people know about it, as one half time.

        1. fposte*

          I think that you’re right that the underlying theory is that the base rate includes the OT base pay, so the .5 for OT is adding the “one half” to “time.”

          1. Thornus*

            Looking at the reg, 29 CFR 778.114, subsection (b) makes it sound like it’s an accounting trick which works by changing the employee’s hourly rate each week while maintaining the same base weekly salary.

            1. fposte*

              Pretty much; it was something that was planned for many of our employees who would have become non-exempt under the last threshold proposal, and it’ll probably come back for some under the new one if it passes. It’s not a bad deal in that situation, IMHO; we’re talking people who had been exempt but didn’t work a ton of OT, and this would have meant avoiding hour tracking and keeping their pay constant.

        2. The Man, Becky Lynch*

          Yeah, it’s saying that it depends on your state. Only 7 outright outlawed it.

          I get this feeling that Washington would eat our faces and then regurgitate them and eat them again. Also if only some employers can use it, why would anyone ever agree to work for them when they can work somewhere that doesn’t try this nonsense.

          Not all states explicitly allow or prohibit fluctuating workweeks. Some states that don’t allow this overtime method might not mention or allow it, so be sure to consult with your state.

          It sounds like a super dicey thing to wade in to, which explains why it’s not even mentioned and you have to dig so deep for it.

        3. CJM*

          That sucks. It would be quite as bad, though still bad, it they divided the annual base salary by 2080 hours, and then used the resulting hourly rate at 50%. But to calculate it so the more hours you work the less your OT rate is horrible.

          1. doreen*

            It really depends on the job. I first heard about this in an online conversation with a pharmacist. She apparently worked as a floater at several different locations of a chain pharmacy and got paid a set salary no matter how many days/hours she worked and then they used the fluctuating workweek method to calculate overtime when she worked over 40. She actually liked the system because the weeks she worked three or four days and got a full paycheck more than made up for the few weeks she got the lower overtime rate.

            1. The Man, Becky Lynch*

              It sounds like they were wrongly not paying her any OT at all. Having seen this position as an exempt position. Then realizing that they had to pay OT, took advantage of the fluctuating option.

              So of course someone who was getting nothing extra was happy to get something more for her work! If she had been paid 1.5x and then they rolled it back to .5 then that would not have been such a sweet victory on her part :(

              1. fposte*

                What doreen’s describing is classic fluctuating workweek, though; I’m not hearing that this pharmacist was working without getting any OT at all, and without the fluctuating workweek salary she’d be paid 3/5ths of her usual take home the weeks she was only three days.

                So while it’s not always this simple, say she worked 42 hours this week and 24 hours last week. With the fluctuating workweek , if she gets paid at $1000 per week/$25 per hour, she gets $2025 for the two weeks, including $25 OT for the two hours. If she’s paid non-exempt hourly, she gets paid $1700 for the two weeks, including $50 OT for the two hours.

                1. fposte*

                  Dammit, I screwed it up; it’s still just $25 additional OT, so $1675 for non-exempt hourly.

    2. fposte*

      Oh, sheesh, these are mind-boggling. Basically, with *salaried* non-exempt employees, you can, if your state doesn’t forbid it, set the OT rate at .5 rather than 1.5 if you meet certain criteria. We looked at it for some employees when the new exemption threshold was in the pipeline a few years ago, and that was the first I’d heard of it.

      I’ll append a link in followup.

  19. BB*

    This was my last job, with an additional nasty twist. There were a few times I worked from home with a gout flareup, billing 10+ hours each day; I also took Yom Kippur off, at the managing partner’s insistence. I was then told to enter those days into the PTO system “for tracking purposes.” When I left, my PTO was negative from those 24 hours input “for tracking purposes,” and the firm deducted the balance from my last paycheck.

  20. Clorinda*

    This is the kind of pennypinching employer who is SHOCKED when someone finds a better job right at the beginning of their industry’s busy season.

  21. Llellayena*

    It seems like there’s a different reaction to this depending on if your job bills your time to clients vs. a non-billable desk job. When you’re billing time, you need to track it whether you’re exempt or not, so under 40 hour is noticeable and needs a reason, hence PTO. Non-billable, no one is (should be) tracking exempt hours that closely so it’s easier to flex in both directions. Does that distinction make sense to anyone else?

    My view may be a little skewed because my company does pay OT (flat time, not time + 1/2) to exempt. I don’t think that’s standard to the industry though (other architects can correct me if I’m wrong). But we can turn around and bill all those OT hours to the clients.

    1. Heather*

      Engineering consulting here: This is the norm for us too. You have to hit 40 hours every week, but you do get paid for billable overtime (only flat time, not 1.5x). It’s kind of a weird mix of both systems.

    2. TacocatRVA*

      My engineer sister gets paid OT at regular time, so sounds pretty similar to your set up as an architect.

  22. BTDT*

    If you’re ok with this, I’d encourage you to present your case for <40hr weeks with an explanation of your childcare situation, in addition to your overtime in the 4thQ. I also have a child with special needs and I’ve found my supervisors to be super understanding of special requests like flex hours, leaving early some says, working from home once in a while, etc. after I’ve explained my kid’s medical appointments. A lot of people have no idea about the time commitment/logistical issues until it’s laid out for them. It still might not convince your boss, and if you’re not ok with sharing the details then that’s completely understandable. I’m just speaking from personal experience that being open about this has worked in my favor. (Being open with my boss I mean. I don’t tell coworkers much at all.)

  23. JM60*

    I want to add that if you live in California, PTO is legally considered wages. Given this, I’m not sure whether or not docking the PTO of salaried emoyees would be legal in California. In general, it’s best to check the laws of your state.

    What your employer is doing is shitty.

  24. New commenter*

    Are there really any benefits to being exempt? I’ve been exempt for years and have zero benefits for it. I miss being hourly.

    2. Mr. Bob Dobalina*

      It has not provided me with any significant benefit. To the contrary, I have been overworked routinely. The “benefit” that one always hears about is the flexibility to get one’s work done in less than 40 hours, or leave early, etc. The problem is that an employer can also load you up with huge amounts of work that can’t be done in 40 hours, then you are expected to work extra hours (with no extra compensation).

  25. Ben Thair*

    I believe the answer is a little more nuanced than you laid out. From a legal standpoint, according to DOL website, if they perform any work on a day, they must be paid for the full day. They can only LEGALLY dock if she takes the full day off. This is per statute 541.602(b)(2). This is answered on the dol wage division website.

  26. FairPayFullBenefits*

    Am I the only person who thinks the way OP’s workplace operates is…the norm? (Crappy, yes, but still the norm?) That’s definitely how every place I’ve worked has been. Your standard week is 40 hours, you use PTO/vacation when you don’t work those hours, and you have to work extra when it’s busy (or in many jobs, you have to work extra, always). Aren’t companies that given comp time for extra hours pretty rare?

    1. Another Alison*

      I agree that it is the norm, but I think OP’s situation is an extreme that really highlights how unfair it can be.

  27. Mother of Cats*

    I hate being exempt for this reason. In my position, taking a week-long vacation usually means I have to come in and work through the weekend to prepare before I leave, and put in extra hours catching up when I get back. I end up working about the same number of hours over a three week period that I would have without taking the vacation, but there goes 5 days from my PTO bank . . . It hardly feels like a benefit.

    1. NotAnotherManager!*

      Yup. It’s why I’m sitting on a trove of vacation hours. Catching up is more work than it’s worth, so I use them in onsie/twosies as needed for kid-related schools stuff. It does me no good to get 20 days of PTO/year if there is never an opportunity to cash them out.

    2. Zaphod*

      Agreed! I had not taken a week off in a year and a half, and when I finally took a week off recently, I regretted doing it, because the 60+ hours of new work that came in during my vacation was sitting there when I got back to work, and it took me over a month to catch up, because I get 60+ hours of new work every week! Horrible.

  28. Another Alison*

    Given that Alison frequently advocates the power in numbers approach to pushing back on workplace policy, I’m guessing that she is, broadly speaking, a supporter of unions? Alison, what is your position?

    I’m just curious, not looking to chastise one position or the other. I’m aware of how unions can be harmful but am generally in favor of unionization.

  29. Just a thought*

    No, wait, I thought this was one of the actually helpful things about being exempt! “We don’t have enough work for you” is not a valid reason to deduct pay. They CAN force you to use PTO, because there are no rules about how PTO is used (and few about whether you get them if you leave, though states like California do have this). The rules are about what you get PAID.

    So it makes it especially terrible for morale, because it means that you can use up your PTO due to not sitting around the office doing nothing before you get to the part of the year where you’d actually need to use paid leave for illnesses, appointments, vacation, etc. On the “bright” side, once you’re out of PTO they can only dock your pay for full day absences, and any half days get rounded out, not up?

    From DOL site:
    Circumstances in Which the Employer May Make Deductions from Pay

    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; for absences of 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.

    So that’s *pay*, which is distinct from PTO rules, but would mean that the employer couldn’t dock your pay if you had no PTO available.

    The real reason employers should care about this, and why tracking your time the way they’d have to do in order to enforce a sub-40 policy, is this:

    Effect of Improper Deductions from Salary

    The employer will lose the exemption if it has an “actual practice” of making improper deductions from salary. Factors to consider when determining whether an employer has an actual practice of making improper deductions include, but are not limited to: the number of improper deductions, particularly as compared to the number of employee infractions warranting deductions; the time period during which the employer made improper deductions; the number and geographic location of both the employees whose salary was improperly reduced and the managers responsible; and whether the employer has a clearly communicated policy permitting or prohibiting improper deductions. If an “actual practice” is found, the exemption is lost during the time period of the deductions for employees in the same job classification working for the same managers responsible for the improper deductions.

    1. Just a thought*

      Oh, here’s the part I was specifically thinking of:

      An employer must pay an exempt employee the full predetermined salary amount “free and clear” for any week in which the employee performs any work without regard to the number of days or hours worked. However, there is no requirement that the predetermined salary be paid if the employee performs no work for an entire workweek. Deductions may not be made from the employee’s predetermined salary for absences occasioned by the employer or by the operating requirements of the business. If the employee is ready, willing, and able to work, deductions may not be made for time when work is not available. Salary deductions are generally not permissible if the employee works less than a full day. Except for certain limited exceptions found in 29 C.F.R. 541.602(b)(1)-(7) , salary deductions result in loss of the section 13(a)(1) exemption.

  30. Mr. Bob Dobalina*

    OP’s employer’s policy seems a bit extreme, but not completely different from my experience, which is that exempt folks can leave early *occasionally* without using PTO, but are generally expected to actually work at least 40 hours per week. I am exempt salaried (private sector) and I’ve had to complete a timesheet in *every* such job that I have ever had over three decades, and the employers expect to see a minimum of 40 hours entered on that timesheet in some combination of actual time worked and PTO. Some timesheet systems won’t even let you enter less than 40 hours of accounted-for time.

    I have not witnesses or experienced any of the more significant (mythical?) flexibility for exempt workers, like getting one’s work done in less than 40 hours and going home). If anything, I have experienced the opposite for decades: exempt workers that are given more than 40 hours of work on a consistent basis and expected to work extra hours every week to get the job done. Employers take advantage of the exempt salaried structure, they intentionally understaff, and use the excuse “well, that’s just the nature of this job–it’s long hours”. It has always irked me that if I work 50 hours for the period Mon – Thurs, that I still have to use a vacation day on Friday because I won’t be present (butt in seat) on Friday. Garbage.

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