Are these actions a violation of employee exempt status?

January 23, 2018 12:04 AM

I am an exempt employee and my employer reduces my pay every chance they get. I need help discerning if this is a 'go see a lawyer' situation or a 'this is normal, chill out' situation.

I have been an exempt, salaried employee with this company for several years. Prior to that, I worked for them as a non-exempt, hourly employee.

I feel like all exempt employees here are treated like non-exempt, but especially me. Each time I do not have PTO to cover an absence, they dock my pay. They take PTO every chance they can (probably legal, but sucks). We must clock in and out and cannot be even 60 seconds late. (I understand this is legal but I think it helps make a case that I am not being treated like an exempt employee.)

There are no rewards for working late or long hours but there are many penalties for coming in a few minutes late or taking time off to see a doctor.

I was suspended twice, without pay, for too many absences. I think this in particular may not be legal?

I was recently in the hospital for an acute health issue during the week (2 days off) but worked the weekend, and was still only paid for 3 days.

Please tell me if I may have legal grounds to pursue this, or if I should drop it and just look for another job. I'm already doing the latter but I am not sure if I should spend the time and effort to see a lawyer.

posted by anonymous to Work & Money (5 answers total)

Location matters greatly in these matters. Contact your local labor board for specific advice.
posted by AlexiaSky at 1:14 AM on January 23, 2018 [2 favorites]

Given you have 'FLSA' tagged, it's likely you work in the US. Exempt vs non-exempt is a tricky thing to figure out, as there are some jobs that are exempt by definition (some salespeople, for instance).

But, per the FLSA website:

With few exceptions, to be exempt an employee must (a) be paid at least $23,600 per year ($455 per week), and (b) be paid on a salary basis, and also (c) perform exempt job duties. These requirements are outlined in the FLSA Regulations (promulgated by the U.S. Department of Labor). Most employees must meet all three "tests" to be exempt.

[...]

Generally, an employee is paid on a salary basis if s/he has a "guaranteed minimum" amount of money s/he can count on receiving for any work week in which s/he performs "any" work. This amount need not be the entire compensation received, but there must be some amount of pay the employee can count on receiving in any work week in which s/he performs any work. Some "rules of thumb" indicating that an employee is paid on a salary basis include whether an employee's base pay is computed from an annual figure divided by the number of paydays in a year, or whether an employee's actual pay is lower in work periods when s/he works fewer than the normal number of hours. However, whether an employee is paid on a salary basis is a "fact," and thus specific evaluation of particular circumstances is necessary. Whether an employee is paid on a salary basis is not affected by whether pay is expressed in hourly terms (as this is a fairly common requirement of many payroll computer programs), but whether the employee in fact has a "guaranteed minimum" amount of pay s/he can count on.

The FLSA salary basis test applies only to reductions in monetary amounts. Requiring an employee to charge absences from work to leave accruals is not a reduction in "pay," because the monetary amount of the employee's paycheck remains the same. Similarly, paying an employee more than the guaranteed salary amount is not normally inconsistent with salary basis status, because this does not result in any reduction in the base pay.

With some exceptions, the base pay of a salary basis employee may not be reduced based on the "quality or quantity" of work performed (provided that the employee does "some" work in the work period).

Per this employee management software site: Clocking in/out and being sticklers about lateness do not seem to be directly related to exempt classification. (The pay-docking that results, yes; see the final section. But just being dickheads about lateness? No.)

Regardless, you'll need to consult with your local (generally state, unless you live in Florida) labour board or a labour attorney to figure out the facts of your case, as there are many many variables to balance when determining if one is exempt/non-exempt and if one's employer is playing games with it. (It does sound like your employer isn't following regs and that it is worth further investigation.)
posted by flibbertigibbet at 3:42 AM on January 23, 2018 [2 favorites]

IANAL but this is the rare employment case which is less dependent on state law: according to relevant federal law exempt employees cannot be docked pay except in very specific circumstances, which it sounds like several of these cases do not meet, like the time card stuff (though some others do - for example, docking pay for a full day if you are suspended from working that day for disciplinary reasons is legal, though only if it’s the full day). Even if you get another job (which you should) I would consult an employment lawyer to go after your current employer for back wages, if only to discourage them from pulling shit like this in the future.
posted by Itaxpica at 7:40 AM on January 23, 2018 [1 favorite]

Mod note: From the OP:

NJ, USA, sorry for leaving that out.

I did find this on a bunch of websites, which does seem to back that unpaid suspensions for non-workplace conduct-related issues are not legal.

"Q: Can a full-time exempt employee be suspended without pay?

A: Deductions from the pay of exempt employees may be made for unpaid disciplinary suspensions of 1 or more full days imposed in good faith for infractions of workplace conduct rules. The disciplinary deductions must involve serious misconduct (harassment, workplace violence, etc.), not performance or attendance issues. The employer must have a written policy applicable to all employees in order to make disciplinary deductions. For example, an employer may suspend an exempt employee without pay for 3 days for violating a generally applicable written policy prohibiting sexual harassment or workplace violence."

posted by LobsterMitten (staff) at 8:12 AM on January 23, 2018

If you're thinking about bringing, or threatening to bring, legal action against an employer, you should be looking for other work anyway. It's a sad fact, but suing your employer, even for clearly illegal actions, is unlikely to improve your longevity at the company.
posted by praemunire at 8:37 AM on January 23, 2018 [3 favorites]