FMLA and Exempt Status

[Guest Margie G]

We have an exempt employee who has exhausted all vacation, personal and sick time taking care of two sick parents.

We have notified the employee that his FMLA "Clock" has started ticking last week.

This employee is exempt and we need to know if we can dock his pay. He is planning on taking 2 or 3 days off per month. The days off are going to be intermittent.

Are we able to dock his pay? I have received conflicting information. I have placed a call to the FEHA three days ago and have called everyday. Comments are welcome. Thank you.

The ee will be taking 2 or 3 days off per month to take care of 2 sick parents.

[Guest Charlie Stevens]

First, the FMLA permits you to charge FMLA leave concurrently with sick and even vacation time, if the reason the employee is absent is due to the serious health condition of a spouse, parent, child or the employee himself or herself. Thus, if you had wanted to, you could have informed the employee that the time away up until now "counted" against the 12 weeks of FMLA leave to which the employee is entitled.

Second, the interaction between the FMLA and the FLSA is somewhat complex and, therefore, the Wage and Hour Division has issued a specific regulation on this issue. It is found at Reg. § 825.206, which is on the Internet at http://www.dol.gov/dol/esa/public/regs/cfr.../0825.0206.htm. It provides a special exception whereby pay can be docked for even partial days of absence due to FMLA. Be careful, however, as sometimes a state will have its own wage & hour laws which would be violated by use of this exception. It is best to consult with someone who is knowledgeable in this area of the law.

Finally, based on your description of the situation, it may turn into a situation in which the employee is gone much more frequently than 2-3 days per month. If this gets really bad, you may not be able to function with a replacement or other attempts to cover the absences. While it is an agressive approach, it is possible that you might be able to require the employee to be off continuously. Please email me if you would like to discuss this aspect further.

[Guest Margie G]

Thank you for your response.

I am aware that we could have concurrently charged his FMLA with sick and vacation time. Unfortunately our site in Los Angeles did not notifty me of this information until October 1st. I have since notified the employee that his "FMLA clock" is ticking.

I will also take your advice and contact our legal counsel.

Thanks again for the response and the new website.