Employee Rights: Time Off Requests for Exempt vs. Non-Exempt

Learn to handle time off requests for employees who are non-exempt or an exempt level employee.  How does the FLSA Act coming into play?

How Do You Handle Time Off Requests for Employees?

Among cherished employee rights are time off, vacation time and sick time.  What do you do when an employee request time off?  Even if just for a half-day?   You are probably thinking to yourself, “That has got to be the dumbest question Haberman has ever asked.” In reality it is not quite as straight forward as you think, because of differences in exempt employees and non-exempt employees, and how you handle time off requests differs with each.

Defining the Non-Exempt vs. Exempt Employees

The confusing issue is paid time off versus non-paid time off.  With non-exempt employees, it is fairly simple.

According to the FLSA, non-exempt employees only have to be paid when they work, so they may take partial unpaid vacation days any time an employer authorizes the time. Because of this, absenteeism is kept to a minimum. Exempt employees are not so simple and how you handle their time off may run you afoul of the Fair Labor Standards Act. Basically in the private sector employers that make deductions from exempt employees’ pay for absences of less than a day may jeopardize their exempt status under the FLSA. This may expose the employer to liability for any overtime worked by the employees and even constitute a violation in paid time off laws.

Paid Time Off or Absenteeism?

Let’s review. Exempt employees are exempt from the FLSA’s minimum wage and overtime requirements because of the nature of their job duties and the fact that they are paid on a salary basis. The term “salary basis” is defined by the FLSA regulations as the payment on a weekly or less frequent basis of a predetermined amount that constitutes all or part of compensation, without reductions for variations in the quality or quantity of the work performed.

Under this definition, exempt employees generally must receive their full salary for any week in which they perform work, without regard to the number of days or hours worked.

Generally if the exempt employee has paid time off available you can require them to use vacation time for partial day absences. This may safeguard the exempt status since this does not reduce the employee’s compensation. The Department of Labor (DOL) generally has considered this type of arrangement permissible. In the comments to the current regulations (implemented in 2004) the DOL specifically restates this position acknowledging that employers may make deductions from exempt employee leave accounts without jeopardizing the employee’s exempt status. Several courts have adopted this position, although a few have disagreed. Those that disagree have determined that this practice, even without an actual loss of pay, treats the exempt employee like an hourly, nonexempt employee and, therefore, triggers loss of the exempt status. So you need to understand the state law where your business resides.

If an exempt employee has taken all their vacation time, sick time or other paid time off the FLSA regulations do allow docking of exempt employees for full day absences taken when the employee has exhausted absenteeism. Specifically, deductions are allowed for absences from work of one or more full days for personal reasons, unless those days are for sickness or disability. As an example, if the employee is absent for two full days to handle personal matters, those two days may be deducted from the employee’s salary without having an effect on the exemption. If you have a bona fide sick leave policy, plan, policy, or practice that provides compensation for loss of salary as a result of sickness or disability you may make deductions for a full day’s absence due to illness or injury. But if you had no such plan you cannot make these deductions.

How you manage and keep track of the time off, is up to you.

Understanding the FLSA Act and the Regulations for Employee Rights

According to the FLSA regulations 29 CFR 541.602(b)(2):

(2) 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.

Simple Exempt Employee FLSA Time Off Solution

There is, however, a simple solution to problem of exempt employees taking half days off. JUST LET THEM DO IT. Generally they are working more than 40 hours a week anyway. (If not, then you have another issue perhaps.) So if they have an occasional request for time off in the afternoon or morning off give it to them. After all, you are most interested in their productivity not their attendance. Or at least you should be.

Photo Credit

Michael (Mike) D. Haberman, SPHR is a consultant, writer, speaker and co-founder of Omega HR Solutions, Inc.  He has been in the field of HR for 30 years as both practitioner and consultant. He specializes in compliance issues for his small business clients. He is the author of the blog, HR Observations and he has been writing blog posts on a full spectrum of HR topics for almost seven years. He is an active user of Twitter and can be found at@mikehaberman or @HRComplianceGuy. 

 

 

 

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Comments

  1. Can an employer require you to use your sick/vacation time if you take a half day off during the week although you’ve accumulated more than 40 hrs in a that week? I took a half a day off but still had 42 hrs. My supervisor added 4 hrs sick time anyway which made me end up with 46 hrs with 2 hrs paid overtime. I work in the state of Texas.

    Reply
    • Yes, Reggie they can. I’d rather just not use your vacation time because they just paid you an extra 2 hours when they didn’t have too. Not sure what the company policy is. . .

      JMM

      Reply
      • I understand this is legal and within policy but how do you communicate to the director that this is harmful to employee morale. When employees are treated as punching a clock they will be less engaged.

        Melissa |
        Reply
  2. This maybe a silly question, however, can an employer require a week advance notice for an appt. that is scheduled in instance that is needed, so a day off in other words?
    thank you

    Shannon Knisely |
    Reply
    • Sorry Shannon, I don’t understand your question. Certainly you can request an employee give you as much notice as possible, but obviously that is not always possible.

      Reply
  3. Does an employer have to notify you or have it stated in their PTO policy
    That they will automatically deduct PTO hours for an absence due to
    illness? Our policy states that an employee is eligible for 1 week of personal
    time off per year, but there is no mention of sick time.

    Lisa Marie |
    Reply
    • Lisa:
      It would be nice, but most policy manual say that management reserves the right to change or ignore policy at their discretion. Does the definition of PTO include sick time? If yes then deducting it is proper. If sick time is included in something else then it should be deducted from that pool. But if PTO includes sick then it is entirely proper for it to be deducted.

      Reply
      • Michael, thank you for your response. As for our policy, it simply states that Managers who qualify for 1 week (40) hours of paid personal time per year. It also states that personal time off must be requested by completing a PTO form and that personal time off will not be considered until a completed PTO electronic is turned in to the general manager. The reason for my asking is, I am planning to take 2 days off in the next couple weeks and my boss informed me that I do not have enough PTO time to cover these days. I have been employed with them for over a year now and I have never submitted one of these forms. I have missed 2 days due to illness and a total 0f 5 days (daughter in car accident) that fell between 2 work weeks 3 months after I started. My boss told me these were the reasons I lacked enough PTO, but according to my last pay stub of the year it stated I had used 24 hrs for 2012. As I have said, I have never submitted one of these forms, so I am wondering if what they are doing is allowable? Thank you so much for any assistance you can offer.

        Lisa Marie |
        Reply
        • By the way, absolutely no mention of sick time in the handbook or personal time off policy.

          Lisa Marie |
          Reply
        • Unfortunately Lisa this is not covered by Federal law, it is policy and past practices driven. Under federal law they don’t have to pay you for any time off, sick, vacation, holiday or otherwise. Unless you are in a state that has passed something to that regard. But I am afraid I have no good news that they “have” to do something.

          Reply
  4. If your exempt and work a 4 day work week and a holiday fall on Friday do you get another day off. We have the policy if the holiday falls on a Sat. you have Fri. off and if the holiday falls on Sunday you have Mon. off – so what happens when it falls on a Friday?

    Debbie Stedman |
    Reply
    • Debbie:
      How often is this going to happen that you need to be worried about it? Exempt employees are supposed to work whatever hours are required in return for that constant salary. You are mixing a non-exempt mentality with exempt situation. They do not work together.

      Reply
  5. Michael,
    I have a 40hr exempt person who works 4-10s typically. One week, he worked 5 days and now wants to only work 3 days this week. Thoughts?

    Reply
    • Jim
      Without knowing the entire back story this is a little difficult to answer, but I will give it a go. My first reaction is the guy needs an attitude adjustment. If he is a clock watcher and works only 40 hours then he does not understand the concept of being an exempt employee where, in return for a paycheck that never goes down you work whatever hours are necessary to get the work done. So he had to work an extra day to get work done, tough! I would prefer to have some dedicated to doing the job and does not pay attention to the clock.

      In return for having that type of dedication you as a manager also have to have a change in attitude. If you have someone that works hard, works extra hours as needed and they get their work done, then if they come and ask for some consideration in taking a bit of time off then you give it to them without taking away vacation or PTO.

      But if you have a culture where everyone watches the clock, only puts in their 40 hours you will not get to that point. You may need to start over. Hire someone who is interested in the work and not just the paycheck.

      Reply
  6. Hello Sir….I happen to stumble upon your site looking for answers to some questions that may be simple to some but difficult for me. I am in my first managerial position. I was sent to supervisors training 101. During that training I found out that I was exempt…even my own supervisor didnt know that I was exempt so he didnt know to tell me. I was told that if you are a manager of 3 more and your duties call for decison making responsibililites amongst other duties, than you’re exempt. I do understand that being exempt means you are more bound to your work and not the clock. So this leads to more than one question:
    1. Is it possible to be exempt and not salary?

    Ernest M. Johnson II |
    Reply
  7. I’m an exempt employee…Can my company require me to use my PTO for partial days off?

    Say I take an hour or two off to go to a dentist appointment or volunteer for my kids school. My company wants me to deduct those hours from my PTO balance. Is this legit?

    Questionable one |
    Reply
    • Yes companies are permitted to require you to take time from a valid time bank. In reality they should deduct the entire day.

      Reply
      • So what you are saying is that he takes 2 hrs off and they charge him for 8? Do they have to pay him for the 6 extra hrs (total of 48)?

        Reply
        • Brad:
          yes, but at the same time that PTO bank is being reduced by that 8 hours. Ultimately the company would have paid for it anyway.

          Reply
  8. I have a question:
    Do I have to tell my employer why or the reason why I request a day off? Or if I decide not to work a day and call my employer to abreast them of my absence prior to shift, do I have to tell them why?

    Marbam |
    Reply
  9. I AM AN EXEMPT EMPLOYEE, AT THIS TIME PTO TIME ACCRUAL IS 6.5HRS /PAY PERIOD. (COMES TO A LITTLEOVER 4 WEEKS PER YEAR) . I WORK AS A MID-LEVEL PROVIDER. THE director over our practice wants to start a pto system that gives you 10 day off a year, can not accrual time anymore, and if you don’t use it you lose it. This is only going to be done to general surgical mid -levels. This will not affect other mid -levels that work at this hospital.(i.e. mid -level in er /family practice/ cvs/neurosurgery). The plan for him is to basically pay my accrual pto time out at 100% without discussing the changes. my question is at such a large hospital, if it is good for one group of mid levels , should it be applied to ALL? Also, he never give an explanation for this. And what type of pto system is this? It is a great hospital but this is just sad. (p.s. I average 55-60 hours in 4 days).

    Reply
  10. Joe:
    Certainly consistency with pay practices is easier to communicate and understand. However, conditions can vary from working group to working group. In order to make sure you manager is not creating something that goes against policy I would check with the HR department.

    Reply
    • Thank you for your help. I think at this time he is in communication with HR to see what he can do ” legal.” He did this at another hospital in town that I worked , it was a complete failure. 5 mid levels left their practices.

      Reply
  11. My boss told me today, after I had already been there for 6 months, that we are only allowed 10 days off a year. Apparently this included requests off and call outs. I guess I am at my 10 days already because I have a baby who has had doctor appointments, as well as appointments for me. She told me that I cannot call out or request off any days for the rest of the year. I have appointments coming up and my son’s 1st birthday. Then she told me that Dr notes count as excused absences (after I had already accrued my 10 days). Then when I emailed my boss telling her that I can get doctor’s notes for appointments that I have in the next few months, she emailed back saying:

    “Just to clearify what was ment on a Dr’s note.

    A yearly check up or baby’s appointment is one hour max. A doctors note is saying you are not able to work. The only time excusable is the actual appointment time not the rest of the day.”

    Am I being ridiculous!? 1 hour max?

    Jennifer |
    Reply
    • Jennifer:
      You are right. This does not seem reasonable. But there really is no law really that covers that, other than the Family Medical Leave Act, but you have not worked long enough to be covered.

      Good luck.

      Reply
  12. I am an employee of the State of California. I have requested a 5 day vacation, 3 months in advance for late August. My supervisor has denied my request. The supervisor is new on the job and simply has no idea what the workload might be in 3 months. Based on historical data provided by myself and co-workers we have attempted to demonstate that the work load is not significantly different during this time period. Is there any recourse in a situation like this?

    Reply
  13. Dan:
    The only recourse is to go to your HR department or to your supervisor’s boss. There is not going to be any regulation that covers that situation. Any recourse you may have will be particular to the state.

    Sorry I cannot help you.

    Reply
  14. I am an exempt employee…..If my employer wants to have our floors waxed during the work week, can she MANDATE that we take a vacation day?

    Jennifer |
    Reply
    • Let me also add that we are working “summer hours” which consist of 4 -10 hour days with no lunch and off on Friday. This week since the 4th falls on a thursday, we get a holiday (we only get 8 hours on holidays) that was built in the calender and then our boss is telling us we cannot work on Friday, instead we HAVE to take vacation day to make up the 2 hours we lost because of the holiday.??

      Jennifer |
      Reply
      • Jennifer:
        if you are truly an exempt employee then you have to be paid for the entire week regardless of how many hours you work. There is no losing two hours. If you are nonexempt then that is a different matter.

        Reply
  15. Dear Michael,

    I have been faced with this situation a number of times and clearly, I’ve made the wring decisions! So, I am asking the expert!
    An employee that started esactly 7 business days ago, sent me an email requesting two days off and having to leave early for 4 days in a row, all within the next two months. Aside from that, the days that he is requesting interfere with our end of month process (financial) and everyone has been made aware that no vacations or personal time is allowed during those crucial times of the month. He was a temporary employee for about 2 months with perfect attendance, and he is extremely capable at his job, great personality, etc. I just don’t know how to respond without sounding too harsh. Please advise….thank you!!!!

    Amy Diaz |
    Reply
  16. Where can I get similar information applicable to full time, NON-exempt employees?

    Maybe you can answer it here..
    I am paid hourly, I work full time and accrue vacation. We have NO written or set policy regarding any other PTO (sick/personal) and that works both for and against the employees in that nothing is required to be paid, nor can any limit really be enforced. A salaried, non-exempt employee takes time off for sick days, doctor’s appointments or medical leave and gets paid 100%, no questions asked. The time for the doctors appointments is not deducted from her paycheck, nor is she required to make up any missed hours.

    I am an hourly, non-exempt employee and I do get paid sick days, but I do not get paid for the hours I miss for doctors appointments. I am fine with not being paid for that time, but is it standard or allowed that they require me to work extra hours to make up for what I missed? I have to leave 2 hours early one day to see a specialist and they want me to work 2 extra hours throughout the rest of the week so my hours total my standard work week. It seems reasonable, however this is not the case for the other non-exempt employees. Also, I am paid by exactly what is on my timesheet. Another non-exempt employee turns in time sheets, but she is paid a salary. I don’t know what to think…

    Lindsey |
    Reply
    • Lindsay:
      It is perfectly fine for them to ask/require you make up time missed. As to how consistently the rule is applied that is certainly a potential issue. If you feel that it is being applied differently because of your race, religion, age, gender, etc. then that is discrimination. If it is not applied to one of those situations then there is nothing wrong, it is just not good management.

      Reply
  17. I have workrd for 3yrs at my place.but thise yr i requeted time off for 2month . to go to africa which is my home ,But when i got back my employee told to that am not having my job back,so my quostion is is that fair .beacuase they gave to me .ple help……

    Reply
  18. I submited 1 day vacation request a day before the vacation day. My boss approved. However, HR dep says that I have to give 45 days prior notice. Is it legal?

    Reply
  19. Can you explain the benefits, to an employee, to being salary exempt vs non-exempt. Where I am it seems there is no difference except that we work overtime at no pay where the “hourly” people get paid for it. I’ve been SN-E at all my previous jobs in my field (mechanical design) but I am salary at the place I am at now.

    Reply
  20. can a salaried person elect to take a day off with out pay eventhough they have PTO – they just wanted to “save” it? Does this compromise exempt status?

    Reply
  21. As an exempt employee I went home Wednesday with Pink Eye No problem I did not want to infect other people. I went to a clinic received Anti Biotic Drops and was told I would be infectious for 24 hours after taking medication. I stayed home Thursday, by Thursday evening all symptoms were gone. I returned to work Friday and was sent home being told I had to get a doctors release to return to work. (this is not in our Employee handbook) and I know this has not been the case with others who have come back to work. I got the doctors note even though it was stated on my doctors bill that I would be fine in 24hours. My Question isshould I be paid without having to use vacation time for the Friday they sent me home I say unfairly?

    Reply
  22. I have accrued 180 hrs of paid sick time. I hurt my back and need minor back surgery which requires 2 weeks off work and 6 weeks of light duty. Can I use my accrued paid sick time with FMLA

    Reply
  23. Can an employer force hourly workers to “make up day” if I were to call out on a weekend my employer says if I call out on a sat. the following sat I would need to make up that day (we are “on” every other weekend as per the schedule)

    Matt Herbik |
    Reply
    • Sure they can Matt. It is their business and work needs to get done. The only obligation they have is to make sure they are paying you correctly for the time worked. But they are certainly free to make you work whatever hours they want you to work, at least under federal law. There are some states that may have different laws and some industries such as trucking and airlines where a certain amount of rest has to be included.

      Reply
  24. Our employers require that we ask for our vacations for the next year every October. For example in October of 2012 I had to submit my requests for my vacation plans for 2013. I submitted for a week in May and 2.5 weeks in November. They were approved. I then planned and booked my vacations as I was approved for them. I recently went on my 2.5 week vacation. When I got back I was pulled into my managers office and told that I did not have enough PTO to cover my time off (I was aware of that, I was 16 hours short. I just figured I wouldn’t get paid for those two days) and that it was policy that if you didn’t have enough PTO to cover your whole vacation you had to cut it short even though it was pre approved over a year ago. My question is that can an employer take your vacation back if you don’t have enough PTO even after you were given permission to take it if they make you ask for I so far in advance? How can one determine that in a years time they wouldn’t have gotten sick at least once? Lets be clear….I was NOT demanding to be paid for those two days. But can an employer “take back” or tell you to cut short your vacation once its been approved? Does approval for time off count as a “promise”?

    Danielle Banton |
    Reply
  25. I work for a company that will not allow me to use my sick/PTO hours if I do not call in 24 hours before my scheduled work time. Example, I fell ill on Sunday at 3:00 PM. I called my supervisor at 6:00 PM Sunday night and told her I was feeling well and may not be into work the next day. I did not work the next day (Monday). I called my supervisor at 7:00 the next morning and told her I would not be at work. She informed me since I did not make the call 24 hours prior to my clock in time I would not be able to use my sick day. Therefore, even though I have sick days she would not allow me to use them. The company I work for does not enforce this policy with all departments There are a few departments in the company (I know for a fact that does not follow the “rules”). As a matter of fact my department did not enforce this rule until recently. I have worked for this company for 5 years. I have ALWAYS been allowed to use my sick/PTO hour anytime with or with out a 24 hour notice.
    How could I use my sick days in the past and not be able to use them now? I have not changed positions or moved from another job.
    I would like to know what I should do.

    Reply
  26. I need help in bringing up something to my employer but was hoping to get more proof of it. I work for a hospital 12hr shifts, when I get placed on call by the hospital they use my accrued days to pay me. Does that sound right? I can understand them using my days if I called and asked to be placed on call but not when they place me on call. Also, with working the night shift shouldn’t the weekends be counted as Friday and Saturday?
    Thank you for you help

    Olivia |
    Reply
  27. Olivia:
    I am not sure I can help you. The FLSA allows employers to define the workweek in a variety of ways. The law also only requires that you be compensated for all hours worked. On-call time is most often defined and set up by the policies of the employer. On top of that laws will vary from state to state. If you feel you are being incorrectly paid the only thing I can suggest is that you contact the Department of Labor for your state.

    Reply
  28. This blog is getting long. I don’t know if this was asked/answered or not so I will just ask. I am a salary exempt employee in WI. The owner of our business informed us that he is shutting down the plant for Christmas 2014 on Wednesday through Sunday (our holiday is Thursday only). We were also informed that we would have to take PTO (Personal Time Off) for Wednesday and Friday. FYI the company policy is that if you have no PTO and you take an unpaid day before or after a holiday (Monday if the holiday falls on a Friday and vice versa) you don’t get paid for the holiday. My question is that, if the plant has a mandatory shut down can salary personnel be told to save and use two of our PTO days for that? I thought if the shutdown was mandatory that salary personnel were paid.

    Reply
    • Brad:
      The answer to your question is “Yes”. The can do that. An employer is not prohibited, after giving vacation time, from later requiring that such vacation time be taken on a specific day. Employers that close their offices during inclement weather or other disasters can ask exempt employees to take vacation or leave but cannot insist on leave without pay.

      Reply
      • “insist on leave w/out pay” unless you have no PTO left, right. If I am out of PTO then they can dock me pay even if it is a mandatory shutdown?

        Reply
          • “portion of the week” did you mean portion of a day? I was under the impression that if I have no PTO left, came in sick on Wednesday, left early and called in on Thursday (all day off) that they had to pay me for Wednesday but could dock me a day’s pay for Thursday. Thereby getting paid for 4 days that week.

            Reply
  29. If i call off for personal reasons can my employensr insist on knowing my personal reasons?

    Brenda Eenigenburg |
    Reply
  30. Brenda:
    Yes they can. It may in their interest to know, given circumstances that have accumulated from previous incidents. Most companies in my experience don’t really push the issue unless they have a valid reason to do so. You also don’t have to answer, but there may be consequences to that.

    Reply
  31. Hi-
    I am an exempt employee (salaried) professional. There is an expected productivity of so many visits (patient visits) per week. If the company is unable to provide me with patients to see, or I have done all I can to contact and make those visits per week, and were unable due to patient availability, etc. can the company use my PTO time to make up the difference??

    max rice |
    Reply
  32. Hello, I have been out of PTO for quite some time now. I am an exempt employee. I have a medical issue that has caused me to miss intermittent days at work( never a full week) and my employer is constantly docking my salary for the pAst 6 month. For example I will have out patient surgery on a Friday and be back by Tuesday and my check will be docked those three days. I have not been paid my full salary in the past 6 months! Can they do that as long as I work a portion of the week? Thanks for your help!

    Reply
  33. I am an exempt employee in the retail arena. While understanding that I was hired to be available 24/7 my physical involvement was to be Monday through Friday for no less than 10 hours a day or 50 hours per week. When satisfactorily staffed, evenings and weekends were to be my free time. A new directive has just been given that a phone call will be made and logged, seven days a week during the evening to verify understanding of a long-standing legal and safety issue. My question is; are we being asked to accomplish this task within legal rights or would you suggest that I am disgruntled over a request that exceeds the scope of the job/pay arrangement to which I initially agreed? Your perspective would be appreciated.

    Tim Foster |
    Reply

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