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
    • Ernest, sorry for the delay in the response. It is possible but very rare. Engineers for example are sometimes paid on an hourly basis. The law does however generally require an exempt employee to be paid on a salary basis make of at least $455 per week.

      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
  34. I’ve been trying to find an answer for this:
    Can an employer limit the amount of UNPAID TIME OFF an employee can request? I live in WA, and my boss has said we’re only allowed one week of time off in a year. Unpaid, not medical. Example: You went to your sister’s wedding in January for a few days, and then in March you went to a concert a few cities over. Now this summer you can’t ask for any time off.
    Is that legal?

    Reply
  35. My normal work week is M-F 8 hrs each day and I have 15 vacation days (120 hrs) per year. I put in for 16 hrs vacation 3 months ago and was approved. Due to my job load, I worked 10 hrs each day (approved) on Mon, Tues, and Wednsesday and took the remainder 2 days off as vacation. My HR manager put in my 2 days vacation but the Corporate office only paid me for 1 full day and a partial day for the second day to equal 40 hours that week. Is this legal to reduce one of my days when i am entitled to 8 hours and still have 10 days vacation remaining this year?

    Cindy Goolsby |
    Reply
  36. I work in a call centre and I took half day off my boss told me my attendance bonus will be taken away. Is that fair because I did attend half a day?

    lesandi |
    Reply
    • Is it fair… Not really. Is it legal? Yes. Sorry no federal law requires that bonuses be paid. The law only requires you are paid for the actual time you worked.

      Reply
  37. I transferred from State to another with my company, I had to use PTO time for the move, is this correct?

    Priscilla |
    Reply
    • Priscilla, on a Federal basis there is nothing wrong with that. Sorry.

      Michael Haberman |
      Reply
  38. I have a question regarding PTO in CA. If a company gives employees 10days PTO a year and an employee who has hours accrued calls out for a day or more, can the employer automatically apply accrued PTO for the day(s) missed?

    Brittany |
    Reply
  39. Hello i had an emergency surgery leave and was out off work for 1 week. Before this I had submitted a request time off for 1 day, a month a go. the date off is coming this Tuesday and my boss gave me a copy of the request back saying NO TOO MUCH WORK TO BE DONT DUE TO SURGERY LEAVE. can he do that? Is this legal? I asked for it in advanced and just before the date they decide to say no.. I understand we got behind at work but like I told my boss I also lost a weeks pay I didn’t meant to get sick and go to the ER.. can you please help

    hugo juarez |
    Reply
  40. If my employer deducted 1/2 day of pay for a doctor’s appt and later another 1/2 day of pay to attend a funeral after my PTO time ran out – did this void my status as an exempt employee? Also if my job description states that I am non-exempt, can they consider me an exempt employee?

    elizabeth |
    Reply
  41. Hello! I have a question regarding collecting unemployment. I’ve been working for this company for over seven months, and do not have any paid time off benefits. I just took four days off as my first vacation since I arrived. I had already mentioned to them that I had a wedding in June that I could attend in tandem with a work education function that would require a week off. I requested the time off well in advance, but was told I would not have my job when I returned. This company encourages its managerst to pursue outside opportunities that enhance their education and understanding of their work function, and has committed to supporting a specific goal the employee sets for the course of that year (this event I would attend falls directly in line with the goal I chose). Can I qualify for unemployment if my job is not available to me when I return from this seminar? Thank you!

    vanessa |
    Reply
  42. I am an exempt physician, and we notified that our company is changing the PTO policy such that if we take an hour or two off for an appointment, child’s school event, etc., (anything they consider to be nonurgent), they will instead require us to take the entire 8h day PTO for that, even if we are ready, able, and willing to work the rest of the day. Is this legal? The other interesting parts of this new rule are that they can individually evaluate each time-off request and decide whether they will be allowed to leave without taking PTO at all or force them to take the entire 8h, which seems to be opening themselves up for a discrimination suit when the policy isn’t being uniformly applied to everyone….

    Leigh |
    Reply
    • The practice is legal, however, it is poor HR practice in my mind. This paragraph helps explain this:
      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.

      Michael Haberman |
      Reply
  43. I am a supervisor in a call center and I am considered an exempt employee. If I come in to work 6 hours and need to leave before completing my shift should I automatically be paid for the remaining of the day or is the company allowed to use my pto hours? Would using my pto hours void me as an exempt employee?

    Dana |
    Reply
    • The best answer is this paragraph:
      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.

      Michael Haberman |
      Reply
  44. I’ve been working for a company for 25 year’s as a salaried employee. I’ve just been notified that I’m a non-exempt salaried employee and starting July 1st I need to start using a time clock. I’m a very dedicated employee and most work weeks involve way more than 40 hours a week. I also travel often and work Saturday and Sundays. I have a few questions……I’ve been reading a lot about the FLSA law and it states that we have to be paid overtime for any hours that exceed 40 hours in a given week. Our employer is saying we can get comp time or be sent home early even if our works isn’t completed. Can I demand overtime pay? Can I ask for overtime pay for the pass several year’s that I wasn’t aware that I was entitled to? Also, what about travel? Does my work hours start and finish from the time I leave my home until I return. I can be gone for up to five days and work weekends.

    Kathy Potter |
    Reply
  45. I work for a company in Pennsylvania and a salaried employer non exempt cause I punch a timeclock. we have company holidays and I happened to take a vacation the week of May 25-31 which included Memorial Day which is a company holiday we are opened ( if I would have worked holiday I would have been paid time & 1/2) but it fell in my vacation. My question is if I had a full week vacation 40 hrs with a holiday in it, shouldn’t I get paid for the holiday (straight time/holiday pay) and only have to use 32 hrs vacation? or would I use 40 hrs vacation and lose my holiday??? Please advise. thanks

    Mary Ann G |
    Reply
    • There is no Federal law that requires you be paid any holiday or vacation pay. There may be some state law in PA, but you will have to contact someone who knows that law. Common practice in most companies in the situation you described would take four days of vacation and pay one day holiday pay.

      Reply
  46. I work for a company in California with a policy that ALL employees (exempt & non-exempt) may not get paid for Holiday pay if they are out (due to illness or other personal reasons) the day before and/or after the holiday (except for a scheduled vacation). We have an exempt employee that was sick on a Thursday and Friday was a holiday. She was paid PTO for Thursday, after that will be out of PTO balance. Can we dock this exempt employee for that Friday holiday since it is written in our handbook? Please advise.

    Pam |
    Reply
    • I checked with a friend who knows California law. Here is what she said:
      Can’t dock wages/salary of an exempt employee for a missing day if they worked any day that week. You can dock a PTO bank but if there is none left you cannot dock pay. It is a discipline issue not a docking issue.

      Right in line with my thoughts.

      Reply
      • Thank you for the response. To add on to my question then, since the employee has exhausted her PTO and we shut down for one week during Christmas holiday… and since she will not be working for the whole week, I am assuming we can dock her wages then for the time during shutdown, is this correct? (Holidays will be paid but for the rest of the days, employees are asked to either use PTO or no pay).

        Pam |
        Reply
        • You are correct. If she does not work you do not have to pay. But working can be as simple as answering an email or taking a call. So you have to control that in some manner.

          Reply
  47. I am exempt employee with no PTO until one year of work. I am at 4 months and needed to take some days before the 4th of July (company paid holiday per offer letter and handbook) and requested these dates in May. I understood they would be unpaid,..however, the day before I left (monday) I was told I WOULD NOT Be paid for the holiday now because I am taking unpaid day off before holiday! This was not told to me when I requested it in May, it is not in the company handbook, nor on the form I used to request unpaid days. I did work on Monday – can they take away my holiday pay?? Also, my coworker did this over memorial day and I believe she was paid, she did not get any “notice” from anyone about this “policy” it seems as if it was started with my request! The other (younger) co worker has already had many “allowances” for many things as well so I am not sure if this is discriminatory, etc. This “policy” does not seem to be consistent throughout organziation. I asked someone who had been there two years and she was not aware of it. After I returned, i questioned this policy some more as it did not seem right and I was told that from now until the holidays, he will not “allow” any more unpaid days. Without any vacations or PTO, I am not sure what that means when something does come up that I need to miss work for but that’s another issue…main problem is should they pay me for 4th of July Holiday

    Lisa |
    Reply
    • Under the Federal law there is no obligation to pay anyone holiday pay. That is dictated by company policy. If you feel you are being treated differently due to your age that is a different issue. Talk to your HR representative to make sure what the policy and practice is.

      Reply
  48. I am an exempt employee with a job description of 40-60 hours per work week. I do accumulate PTO. I also, some weeks work 6 days a week. By my employer, I am required to be in the office Monday – Friday and execute my event on Saturday, with only Sundays off. Can my employer tell me to use my PTO to have a Monday off following a Monday -Saturday work week?

    Annonymus |
    Reply
  49. One of our employees who is on salary injured themselves off of the job. In the last two weeks they worked only 5 hours. Are we required to pay them for the full 80 hours?

    Brooke |
    Reply
    • Brooke, the first question is are they exempt? Salary is just a method of payment and not an official classification. Next question, is that five hours spread over both weeks, i.e., did they work 2.5 hours each week.? If they are exempt and they worked some each week then the answer is yes, you have to pay them. If they worked that five hours in one week but not the other then they have to be paid for the one week, not the other. But you also can require them to use PTO. FMLA could also be an issue as could be thevADA.

      Reply
  50. Thaat is a very good tip particularly to those
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    Reply
  51. I am an exempt employee in the state of PA who accumulates 120 hours of PTO a year. If at the end of the year, you have over 120 hours, you lose those extra hours. After four years of working with the company, at the end of 2013, I had 188 hours of PTO left, (therefore I lost 68 hours at the end of the year). I have recently come to be under new management – both my manager (who started in Sept 2013) and my director (who started in May of 2014). My past director had a very lenient PTO policy in which if we ended up working on our vacation because we were needed, or worked on your day out sick, he would normally tell us to not put those hours in Lawsons – we, the employees, are responsible for tracking both sick and PTO hours in Lawsons, and the manager or director then signs off/approves our time sheets every two weeks. This past fourth of July, I took PTO on Monday, the 7th, and then when I was needed at the hospital to make a decision to put my grandmother on hospice, I was asked to put a half day of family sick time in (worked 6am to 11am and then again 7pm to 10pm anyway though. Further, I have activity logs proving that I worked 6 hours on the 4th and another 5 hours on the 5th). However, even though I put 5 hours sick time in, and 8 hours holiday time in, I inadvertently forgot to put in 8 hours of PTO for that Monday I took off. My new manager then took the liberty of going through my personal calendar, (which she forced me to share in February of 2014 – but I have never kept it up to date, as we have a team calendar available to everyone that should show where we are), and went back all the way to June of 2013 to try and find discrepancies between the time I put in, and what I have on my PERSONAL calendar – (which I have also always used to track my ex’s vacations with my daughter, as well as my mother’s vacations because I need to find another babysitter on those weeks). She then notified me that her analysis concluded that I only put in 85 hours of PTO, and I will have 100 hours of PTO deducted from my bank next payroll – which is actually saying that she believes I failed to enter 168 hours – OVER FOUR WEEKS, this analysis is also saying that in the past year, I have taken 6 weeks of vacation – from June of 2013 until now – which there is absolutely NO WAY I came anywhere close to taking that much vacation. I took 3 weeks of vacation in that time period – I am positive of that fact – and that’s being generous, because I know at least oneof those three weeks, I put in at least 40 hours. I did forget to put the last week of Dec 2013 in, but I didn’t think it mattered since I was losing 68 hours that very same week anyway for extra hours that won’t carry over. She also then wrote me up saying I was “negligent in putting in my hours properly.” I asked for the exact days she felt that I didn’t put in appropriately and they refused to tell me and further threatened me to go back to 2010 which they are sure would put me in the negative. I also asked for the method they used to determine whether or not I actually took PTO that day and they refused to tell me how they did that. So I personally went through my calendar and any day that said vacation on there that I knew was not one of the weeks or days I took off, yet had it there for reasons mentioned previously, I ran activity logs (I’m a clinical analyst so I can run reports on myself showing all activity done and printed out all emails sent for those days which proved I worked way over 8 hours on most, if not all, the days that I had put PTO on it for. Then, not only would they not tell me their method, but they refused to look at my activity logs, emails, or VPN logon records proving that I was working. Is this legal to do? This will be the first year that they are paying out extra vacation time, and I find it quite strange that they would deduct time, especially considering how much I work and have always been viewed as working long hours by my customers and coworkers. In my opinion, the record should be what is in Lawsons, not what is on my personal calendar that I have never had to share with anyone previously. This all seems very unfair – I’m not the type to sue, but honestly, I want to find a new job and sue them for this because I have never felt so devalued and taken advantage, and even stolen from, by an employer throughout my working history.

    Karen |
    Reply
  52. I am an salaried employee that currently has 160 hours of vacation hours (I have separate sick hours) banked. At the end December I can only roll over 65 hours of vacation to the next year. I have been told by my supervisor that he doesn’t want me to take any more vacation time this year. (Incidental, but my last vacation was at the end of February.) Can I be “forced” to loose my vacation time?

    Daphne |
    Reply
  53. On a federal basis there is no requirement that your employer provide you with any vacation. That may be different depending on what state you are in based on state law. Regardless it is not good employee relations, so I would check with your HR department and definitely check out your state regulations. If you have any questions call your state Department of Labor.

    Reply
  54. State of Colorado – Company changed the vacation rules for exempt employees. The change allows for partial vacation time to be used to fulfill a shift requirement. For example, if my shift is 9 hours and I work 5, I enter 4 hours vacation. We used to just enter the 5 hours worked. There was no need to account for the remaining shift since that was a benefit of being exempt (paid for the day when partially worked the shift). Does this constitute a change of exempt status since we need to account for every hour of our shift? Thanks!

    DeAnna |
    Reply
  55. Can an employer require that you use your paid time off accrual for holidays that they make you take off?

    Kristen |
    Reply

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