Paid and Unpaid Absences of Professional and Administrative Employees
In general, exempt employees need not be paid for any workweek in which they perform no work. However, for any week in which employees perform any work, they must receive their full salary without regard to the number of days or hours worked. An employer can jeopardize an employee's exempt status by improperly docking the employee's pay for an absence from work. The DOL's rules for determining how an employer may dock an exempt employee's pay for absences from the job distinguish between "absences occasioned by the employer" and "absences occasioned by the employee".
ABSENCES OCCASIONED BY THE EMPLOYER
If an employee's absence is occasioned by the employer, its business operations, or any other circumstances beyond the employee's control, no deduction in pay may be made unless the employee misses an entire workweek. An absence of an exempt employee is occasioned by an employer if either:
- the absence results from a decision by the employer, or
- the absence results from the requirements of the employer's business operations.
Employers can suspend exempt employees for periods of less than a full workweek (only) for major safety violations. However, courts have found that very few safety violations meet this narrow exception.
If an employer suspends an exempt employee for anything less than a major violation for a period of less than a full workweek, the employer must pay the employee's full salary for that workweek or risk losing the employee's exempt status. If the employer fails to pay the employee's full salary for the workweek, DOL investigators might later invalidate the employee's exempt status and assess back wages for all the overtime that the employee has worked over the previous two or three years. Suspensions of a full week are permitted because exempt employees do not have to be compensated for weeks in which no work is performed.
Jury Duty, Witness Duty, Military Duty
Deductions may not be made for absences of an employee caused by jury duty, attendance as a witness, or temporary military leave.
ABSENCES OCCASIONED BY THE EMPLOYEE
Substantially different rules apply to absences occasioned by exempt employees, including:
- absences due to illness, and
- personal absences.
In general, an employer may dock an employee for such absences for a day or more without jeopardizing the exemption. However, deductions may not be made for absences of less than one day if the employer wants to maintain the exemption.
Absence Due To Illness
An employer may make deductions from an exempt employee's salary for absences due to sickness or disability if the employer has a bona fide leave plan for sickness or disability that provides compensation for sick days. However, if an employee comes to work, does some work and then gets sick, the employer may not dock the employee's salary for that partial day's absence, even if his or her sick leave has been depleted.
NOTE: An exception under the Family and Medical leave Act (FMLA) permits an employer to dock pay for a partial day's absence for family leave. The Family and Medical leave Act (FMLA) allows deductions for leave of less than a full day under certain circumstances. Thus, if an exempt employee is on FMLA leave for part of a day, his or her salary can be docked. This is the only exception to the general rule prohibiting employers from docking exempt employees' pay for partial days of absence due to sickness.
A personal absence is any absence that an employee takes for personal reasons. If an exempt employee is absent for an entire day for personal reasons, the employer may dock the employee's salary on a pro rata basis for the absence. If, on the other hand, the employee performs some work before taking a leave of absence for personal reasons for the remainder of the day, the employer may not dock the employee's pay. In other works, salary reductions for part-day personal absences are not permitted.
REDUCING LEAVE BALANCES
Employers generally can reduce or "dock" the leave balances of employees in increments of less than a day. In fact, the Wage-Hour Division takes the position that employers can dock exempt employees' leave balances in any increment they choose, even portions of an hour.