Need the money, don't want to be fired.

January 11, 2012 4:16 PM

Should my company be allowed to dock me, as a salaried employee, for the 4 hours I took off today? How should I broach this subject? Snowflake details inside.

I recently started a new job - you accrue vacation/sick time but cannot actually use it until you have been there 4 months. Okay no problem.

Today, for medical reasons, I had to come in 4 hours late. This was pre-planned...I didn't just not show up.

So on my weekly time sheet they put down 4 hours and then 4 hours unpaid because I do not yet have sick time.

It seems to me if I am salaried they cannot do that. They can only not pay me if I take a whole day. I believe if I had sick time they could require I use it, but if I had already run out they couldn't dock me.

I feel as if I should speak with my boss about this tomorrow. He is a very nice guy so he doesn't not mean this to be evil, plus I feel the need to be gentle as this is my first week on the job. I don't feel I can let it slide however as it will happen another 3-4 times in the next 4 months and I can't afford to lose that much money. What do you think is the best way to have the conversation? I don't want to go over his head to HR. Ideally I would like him to say "That's a good point. I don't know you should talk to HR". Then I can get a final answer but not be a jerk about going around him.

I am salaried and this is in Mass.

posted by IzzeYum to work & money (26 answers total)

you accrue vacation/sick time but cannot actually use it until you have been there 4 months

I'm sorry, I'm not sure I understand. If this is the policy and you haven't been there 4 months, what is the problem? If you're salaried how are they actually "docking" you?
posted by liketitanic at 4:23 PM on January 11, 2012 [1 favorite]

i'm not a lawyer, but, yea, that doesn't seem right.

i'd approach it like "um ... i think i didn't fill my time sheet out right, did i?" and then you can have a conversation about expectations.
posted by cupcake1337 at 4:23 PM on January 11, 2012 [1 favorite]

My initial thought, without checking any relevant laws, is that although you're salaried, you may also be nonexempt-- meaning, IIRC, that you're eligible for overtime, but can also be docked for time not worked.

More to the point, if it'd make you more comfortable, I think it's fair to go to HR with this question first. Not in a going-over-your-boss's-head sense, but more, "I don't understand the rules here. Can you explain it to me so I don't have to bother Boss?" I mean, that's HR's job.
posted by Agamede at 4:23 PM on January 11, 2012 [12 favorites]

If I were you, I'd offer to work 9-hour days the rest of the week to make up for those missing 4 hours and see if you could be paid for them that way. And in the future, try to schedule your appointments early or late so that you can get in most of your 8 hours before or after your appointments.
posted by jabes at 4:24 PM on January 11, 2012 [8 favorites]

Does your company have a policy stating how many hours salary employees are to work a week to get salary pay? The company where I work has the rule the employee have to work 35 hours to get salary pay, if they are short they have to use their accrued pdo hours (paid day off hours) to equal 40 hours. If they were on the probation period like you are it would come out of the pdo balance as it is accrued.
posted by sandyp at 4:25 PM on January 11, 2012

My dad is technically salaried, I think, so can't make overtime, but has to fill in weekly time-sheets and does get docked pay for each hour under 40 hours he works each week. Sort of a heads-they-win-tails-they-win for the company. I'm not sure how you can be docked for hours under 40 but not get paid extra for hours over 40, but I'm positive they've sorted it out legally and they're on the right side of the law, in my dad's case. YMMV of course, but this situation sounds potentially plausible for you too.
posted by UniversityNomad at 4:29 PM on January 11, 2012 [1 favorite]

Your logic doesn't quite make sense -- think about it before you approach your manager.
- If you miss 4 hours and you have sick time, we pay you for 4 hours labor + 4 hours paid time off.
- If you miss 4 hours and you don't have sick time, we pay you for 4 hours labor + 4 hours what?

Do you see what I mean? What's the point in paid time off if all time off is paid?
posted by Houstonian at 4:31 PM on January 11, 2012 [12 favorites]

It's totally fine to go to HR and ask. That's HR's responsibility. You're not making waves or doing anything wrong by asking HR about this. See what they say. If there's a written PTO policy, look at it.

There's nothing inherently suspect about salaried employees taking unpaid leave. You may not be yet eligible for paid sick leave yet, so the time you take off is unpaid.
posted by MoonOrb at 4:32 PM on January 11, 2012 [1 favorite]

Talk to HR. You are probably non-exempt - but there are other wrinkles here that will take longer for me to explain than it will your HR rep, because they will be able to exclude a ton of possible scenarios.

I could also list at least 100 questions the employees I do HR work for have asked which are significantly less appropriate than this, but I won't. This kind of question is why your pay isn't done entirely by computers.
posted by SMPA at 4:36 PM on January 11, 2012 [2 favorites]

Your contract sounds pretty clear - in your first 4 months you don't get paid for hours you don't work, but you accrue entitlements that can be taken after that time. Okay, that's not great, but it's pretty standard practice.

Nothing wrong with asking HR about it (and I'd nth the suggestions to ask HR rather than your boss!).

Jabes' suggestion is great - if this is going to be a regular occurence over the next couple of months, then it would be good to offer to be flexible about it - it means you still work 40 hours a week, and therefore get paid for fulltime work. And it shows a committment to your new job - "I appreciate that there are some weeks where I have to take half a day off, but I'm still committed to getting the work done, and am a valuable employee" - useful if you're new in post!

Good luck.
posted by finding.perdita at 4:40 PM on January 11, 2012

With a few specific exceptions, exempt employees simply cannot be docked pay, no matter how many hours were worked. There is not enough information to go on here, but this sounds like an illegal arrangement.
posted by ellF at 4:43 PM on January 11, 2012

In general, one of the few protections that salaried exempt employees have under the FLSA is that they can't be docked pay for partial days worked in most circumstances; this would effectively turn them into non-exempt employees and make them entitled to overtime.

From the Department of Labor's FLSA FAQ:

14) Question: May an employer make deductions to an employee’s salary without jeopardizing the employee’s exempt status?

Answer: Deductions from a guaranteed salary are allowed only in limited circumstances.

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

posted by strangely stunted trees at 4:45 PM on January 11, 2012 [4 favorites]

However, the Department of Labor does make an exception in this case:

"An employer may make a deduction from an exempt employee's salary for the employee's full day absences due to sickness provided the deduction is made in accordance with a bona fide plan, policy or practice of providing wage replacement benefits for such absences. Deductions may also be made for the exempt employee's full day absences due to sickness before the employee has qualified for the plan, policy or practice or after the employee has exhausted the leave allowance under the plan.

For example, an employer's sick leave plan provides each employee with 10 paid sick days per year. An employee must work for the employer 90 days before becoming eligible for the sick leave benefit. In this example, a deduction of one or more full days may be made from the salary of an exempt employee who is absent due to sickness:

- Before the employee becomes eligible to participate in the sick leave plan (i.e., in the initial 90 days of employment);
- After the employee has exhausted the 10-day leave entitlement under the sick leave plan; and
- When the employee receives compensation according to the employer's sick leave plan. (In this case, the employee would most likely not see a reduction in pay but rather the employee's sick leave benefit would be reduced by the number of days he or she was absent due to sickness and for which compensation from the plan was received)."

Source: http://www.dol.gov/elaws/esa/flsa/overtime/cr9.htm. Emphasis mine.
posted by ellF at 4:47 PM on January 11, 2012

"salaried" and "exempt" are also not necessarily synonymous -- one can be both salaried and non-exempt.
posted by brainmouse at 4:49 PM on January 11, 2012 [3 favorites]

jpeacock, as a counterpoint, I'm a salaried employee. I get paid my full salary whether I work 100 hours, or 1. That's the very nature of being a salaried employee. In most circumstances, it doesn't work out in the employee's favor -- that is, most salaried people aren't working fewer than 40 hours, and the technical definition is "exempt", in that the employee is exempt from receiving overtime pay.

However, it's not germane here; once past the probationary period, the only reasons why pay can be deducted are as laid out in the DOL citations above.
posted by ellF at 4:49 PM on January 11, 2012

ellF, your citation is only relevant to full day's absences, not partial - see the first paragraph in your quote.
posted by strangely stunted trees at 4:51 PM on January 11, 2012 [3 favorites]

I'm a salaried employee, and there's been some... dispute over whether I'm exempt or non-exempt in the past, but in general it's been "if you're at work for 4 hours and 1 minute, that counts as a full day", which works out great for doctors appointments and whatnot.
posted by Oktober at 5:03 PM on January 11, 2012

Legalities aside, you really don't want to be fired and you want to make a good impression, so you need to find a way to work this out so that you're not fighting with your boss. That means changing around appointments, working more time on different days, staying late, or simply sucking it up.

It's a bad situation, and I'm really sorry you're in this bind.
posted by the young rope-rider at 5:19 PM on January 11, 2012 [1 favorite]

IAAL, IANYL, TINLA.

I have no experience in Massachusetts as either an employee or in the law, and you've asked what is a very good question that--according to the answers above--doesn't have a clear answer among the general public. The other problem with your question is it is *too* on the nose; I really can't even say what it might be in California (where I practice), because I don't want you to rely on me, even though I said above you shouldn't. And, anyone with legal experience in Massachusetts would probably not answer, because that's cutting it really close.

Your question, however, was "how do I approach my boss, because 'I don't want to go over his head to HR.'" To answer your question, I would do exactly what you say: "I believe this [docking of pay of a salaried (possibly exempt) worker] is wrong by the law, but I'm not sure. Are you [boss] sure?" Unless you are a law firm or a company of professional HR workers, he should say to check with HR. And if your boss gives you the company line, ask his permission to talk to HR.

Good luck, and congrats on the new job!
posted by China Grover at 5:20 PM on January 11, 2012

This is exactly how my salaried job worked. Those 40 hours have to be accounted for by something - sick time, floating holiday, vacation time or unpaid. When I first started, out was unpaid.

If your logic applied, you'd be paid whether you worked or not.
posted by jasper411 at 5:52 PM on January 11, 2012

I was discussing this topic with my accounting/HR dude (small company) about an hour ago. He gave that specific example as a no-go in today's understand of salaried vs. non-salaried, concepts that're well-codified into law (and case law!).

That said, he said that consistency across the company goes a long way towards preventing a company from getting cross-examined in that fashion.

I am in an Work At-Will state (aka Fire At-Will) so such policies are rare; I think they're more common in union-heavy states because there exists trial periods after hire and such nonsense.

Since you're new to the job, though, I'd put off invoking the law; you don't want to get branded as a sea-lawyer (a know-it-all shirker). I'd open with "that's not consistent with my understanding of the term salary."
posted by Sunburnt at 6:51 PM on January 11, 2012

I agree with Sunburnt. Don't couch it as "the law says!", but as a way to work the problem out. Maybe you can have an off books negative credit in your sick time that you will account for once you are allowed to take it. Or work extra hours to make up.

But since this is just a preliminary period, I would just suck it up and change my appointments in the future.

It seems to me if I am salaried they cannot do that. They can only not pay me if I take a whole day. I believe if I had sick time they could require I use it, but if I had already run out they couldn't dock me.

This seems like a foreign concept to me, but possibly because I am salaried and non-exempt, and have to count hours nonetheless, so it's just something I am used to. I owe them 40 hours a week, they owe me $x a week. If I only give them 35 hours one week, I have to pay them the other 5 hours out of my sick/vacation time bank. Further, if I run out of paid time off, I expect I would get docked.

Also, watch out for the sick time versus personal time versus vacation time differentiation. A lot of employers view sick time as not something that can be planned. Sick time is not "medical" time, but for occasions when you are literally too sick to come to work or you go home sick. Doctors appointments would come out of personal/vacation time in a situation like that.
posted by gjc at 7:29 PM on January 11, 2012

"Salaried non-exempt" here seems to mean people who work a fixed number of hours, get paid less if they work less and more if they work more, but generally get the same pay each pay period. I don't understand how that's different from "hourly," which is what I was until I became exempt. As an hourly worker, you put in a set number of hours; overtime is virtually not allowed but can be approved; work less and you're paid less; generally get the same pay each pay period.

"Exempt," as interpreted by the Washington and Oregon companies I've worked for, means I get paid for a full day no matter how long I work for up to five days out of every week. If I work three minutes a day for five days, I get my salary. (Though if I slacked that much I'd probably be fired; and though I actually check email and do some light work even on days off and I don't try to get paid for that.) If I work 12 hours a day for seven days, I get the same salary. I'm only docked if I work fewer than five days (and four 17-hour days would count the same as four one-hour days).
posted by croutonsupafreak at 8:05 PM on January 11, 2012

What croutonsupafreak describes is what exempt salaried means. If you get paid for time worked, you aren't salaried, and the company is (in almost all cases) simply breaking the law.
posted by ellF at 8:35 PM on January 11, 2012

Backing up, you said that this is your first week and that you'll need to take 4 hours off another 3-4 times in the next four months. Did you bring this up prior to taking the job? That would've been the best time to bring this up. If you didn't, now would be a good time to let your supervisor know.

Otherwise, seconding the advice above -- see if you can work extra hours here and there to make up the gap.
posted by Atom12 at 6:53 AM on January 12, 2012

I would certainly be cautious of how you approach this if you are still on probation. Employers don't want staff who are always off sick but it's practically impossible to sack someone for it once they are past probation- employers who have had bad experiences in the past might be scared off by this. I hope that's not the case for you but it is worth bearing in mind.
posted by KateViolet at 11:45 AM on January 12, 2012