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Compensation  >>   Intermittent FMLA for Exempt Employees Search Discussion Posts
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Intermittent FMLA for Exempt Employees  
Posted: 11/10/2009 09:37am   118 Views

First, I apologize in advance for the anonymous post - I am directed to post this way due to the nature of my query.

We have an Exempt employee (not in California) that takes 1 or 2 hours off nearly every Friday for intermittent FMLA.  Although we have documentation from their doctor as to the reason for the intermittent leave, we have concerns that the employee is "gaming the system" in order to be paid for time not worked.  The employee has long since exhausted their PTO.

Since the employee is Exempt, we cannot cut their pay due to the quantity or quality of their work, so we cannot cut their pay for the 1 or 2 hours they take off for FMLA.  Or so we believe.  Can an Exempt employee in this situation continue to leave early every Friday in perpetuity (as long as there is the note from the doctor) and continue to get paid their full salary?  Is our only alternative to fire the employee for other reasons (we are in a right-to-work state)?


Intermittent FMLA for Exempt Employees  
Posted: 11/10/2009 10:13am   Revised: 11/11/2009 06:25am  

It appears from these references that you can dock this exempt person's pay for partial day FLMA absences.

Pay docking exceptions as noted in DOL power point presentation.

http://www.dol.gov/whd/regs/compliance/fairpay/presentation.ppt#342,16, Permitted Salary Deductions

From a DOL Opinion Letter: 

 FMLA and the regulations at 29 C.F.R. §825.206(a) (copy enclosed), employees determined to be exempt under section 13(a)(1) of the FLSA will not lose their exempt status as the result of unpaid FMLA leave, because the FMLA allows an employer to dock an exempt employee’s salary for FMLA-protected partial day absences without affecting their exempt status. The Department’s position is further clarified by interpretive letter FMLA-89, dated July 3, 1997, which is attached for your convenience.http://www.dol.gov/WHD/opinion/FLSA/2005/2005_04_11_16_FLSA_timesheet.pdf

Another reference:


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