FLSA Frequently Asked Questions

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Published on Tuesday, 23 July 2019 00:00

HR Partners frequently has inquiries regarding exempt employees and managing their schedules. See below for a few of the most common questions and answers.

Can an employer create a specified schedule for exempt employees? 

The Fair Labor Standards Act (“FLSA”) does not specifically prohibit employers from requiring exempt employees to work a particular schedule or to track the hours they work. The Department of Labor (“DOL”) has stated that employers may require exempt employees to work a specific schedule and to record and track hours without affecting their exempt status. 29 CFR Part 541. However, it is important to note that if you require exempt employees to work a certain number of hours and account for their work time on an hourly basis, you may jeopardize the exempt status of these employees if the accounting has the effect of treating them like hourly workers. This will likely create liability for overtime payment for the employer.

Will tracking time with a specified schedule risk an employee’s exemption status?

The DOL has allowed for hourly tracking of time for exempt employees. (See 29 CFR Part 541, “employers…may require exempt employees to record and track hours.”) However, this may only be done for purposes unrelated to employee pay (i.e., tracking to monitor performance, productivity, or billing to clients). The hours should be tied to job duties rather than strictly connected to starting and ending work times. Conversely, tracking hours and then adjusting the base salary compensation to match work hours would likely cause a loss of the exemption. If the exemption is lost, the employee becomes nonexempt and the employer will be liable to pay any earned overtime.

What options are available for an employer when an employee fails to meet the minimum hours of the employee specified work week?

An exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked. If the employee is ready, willing and able to work, deductions may not be made for time when work is not available (i.e., inclement weather). 29 CFR Part 541.602.

The relevant exceptions to this rule are as follows:

1. Deductions from pay may be made when an exempt employee is absent from work for one or more full days for personal reasons other than sickness or disability;
2. Deductions from pay may be made for absences of one or more full days occasioned by sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary due to sickness or disability;
3. Employers may offset any amounts received by an employee as jury fees, witness fees or military pay for a particular week against the salary due for that particular week without loss of the exemption if the employee is absent to fulfill those duties; and
4. An employer is not required to pay the full salary for weeks in which an exempt employee takes unpaid leave under the FMLA. 29 CFR Part 541.602.

Other potential options for employers include a salary cut (not below the minimum exempt requirement), voluntary loss of exemption (this would require a balancing test), and as a last resort, termination.

Note: It may be beneficial to speak with the employee to determine why he or she is not meeting the minimum hours. If an employer has over fifteen (15) employees, the employer is subject to the Americans with Disabilities Act. If there is a situation that falls under this act preventing the employee from working the minimum hours, the employee may be entitled to reasonable accommodations.

For more tips on addressing employee schedules and the FLSA, please contact HR Partners at 785-233-7860. In addition, we would be pleased to assist you with any other HR matter your business may need guidance with.