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FLSA2009-18
January 16, 2009
Dear Name*:
This is in response to your
letter on behalf of your client, a health care provider, regarding whether
certain deductions from a paid time-off (“PTO”) plan affect the exempt status
of executive, administrative, and professional employees under section 13(a)(1)
of the Fair Labor Standards Act (FLSA).[1]
Your client proposes
requiring salaried exempt employees to stay home or leave work early during
periods of insufficient work (“periods of low patient census”) and deduct the
non-work time from the employees’ accrued paid time-off accounts. The
employees will receive their regular salaries so long as they have sufficient
hours in their PTO accounts to cover the non-work periods. If an employee’s
accrued PTO is exhausted, the employee’s salary will be reduced in full-day
increments, except that in no event will an employee’s salary be reduced below
the minimum salary required for exemption, $455 per week.
The FLSA provides an
exemption from the minimum wage and overtime requirements for “any employee
employed in a bona fide executive, administrative or professional capacity,” as
those terms are defined in 29 C.F.R. Part 541. 29 U.S.C. § 213(a)(1). To
qualify for the exemption, the employee must meet certain tests related to job duties
and the amount paid on a salary basis. Your letter addresses only the salary
basis requirements in 29
C.F.R. §§ 541.600-541.606 and this opinion is limited to that question.
To qualify as exempt, most
executive, administrative, and professional employees must be paid on a salary
basis.
An employee will be considered to be paid on a “salary basis” within the
meaning of these regulations if the employee regularly receives each pay
period on a weekly, or less frequent basis, a predetermined amount
constituting all or part of the employee’s compensation, which amount is
not subject to reduction because of variations in the quality or quantity of
the work performed.
Id. §
541.602(a) (emphasis added).
As noted in the preamble to
the 2004 regulations, since the 1940s the Department has maintained that a
salary test is a valuable index in determining the bona fide status of an
executive, administrative, or professional employee.[2]
In 1944, the Wage and Hour Division clarified that the salary basis requirement
means, among other things, that the amount paid is not subject to reduction
because of variation in the number of hours worked or in the quantity or
quality of the work performed during the pay period. See id.
Subject
to specific exceptions found in the regulations, an exempt employee must
receive his or her full salary for any week in which the employee performs any
work without regard to the number of days or hours worked. In no event can any
deductions from an exempt employee’s salary be made for full or partial day
absences occasioned by lack of work:
An
employee is not paid on a salary basis if deductions from the employee’s
predetermined compensation are made for absences occasioned by the employer or
by the operating requirements of the business. If the employee is ready,
willing and able to work, deductions may not be made for time when work is not
available.
Id. §
541.602(a).
Employers can, however, make
deductions for absences from an exempt employee’s leave bank in hourly
increments, so long as the employee’s salary is not reduced. If exempt
employees receive their full predetermined salary, deductions from a leave
bank, whether in full day increments or not, do not affect their exempt status.
See 69 Fed. Reg. 22,122, 22,178 (Apr. 23, 2004); Wage and Hour Opinion
Letter February 18, 1999 (copy enclosed).
Your letter presents
two specific questions for which our response follows.
1. Are exempt
employees who are required to take PTO during periods of “low patient census”
in danger of losing their exempt status?
As indicated above, an
employer can substitute or reduce an exempt employee’s accrued leave for the
time an employee is absent from work, even if it is less than a full day and
even if the absence is directed by the employer because of lack of work,
without affecting the salary basis of payment, provided that the employee still
receives in payment an amount equal to the employee’s guaranteed salary.
An employee will not be
considered to be paid “on a salary basis,” however, if any deductions from the
salary are made for full or partial day absences occasioned by the employer or
by the operating requirements of the business. See 29 C.F.R.
§ 541.602(a). If an employer requires that an exempt employee work
less than a full workweek, the employer must pay the employee’s full salary
even if: (1) the employer does not have a bona-fide benefits plan; (2)
the employee has no accrued benefits in the leave bank; (3) the employee has
limited accrued leave benefits, and reducing that accrued leave will result in
a negative balance; or (4) the employee already has a negative balance in the
accrued leave bank. See Wage and Hour Opinion Letter FLSA2005-41
(Oct. 24, 2005). See also Wage and Hour Opinion Letters May 27,
1999, February 18, 1999, May 23, 1996, and April 6, 1995 (copies enclosed).
2. If an exempt employee’s
accrued PTO is exhausted and the periods of low patient census continues, could
your client schedule the exempt employee for less than forty hours and reduce
pay accordingly?
In your letter you state
that, if an exempt employee’s accrued PTO is exhausted, in periods of low
patient census the employee “would be sent home and paid a reduced salary for
the week.” You further state that the employee “would be away from work for
one day during the week and receive pay for four days. This practice would
only be done in full-day increments for a short period of time.” In light of
the requirements in 29 C.F.R. § 541.602(a), as discussed above, such full or
partial day reductions in compensation would mean that the employee is not paid
on a fixed and guaranteed weekly salary basis without regard to the quantity of
work performed.
Your letter referred to Wage
and Hour Opinion Letter November 13, 1970, to support the view that such
reductions in the salary paid to exempt employees would be permissible. The
circumstances addressed in that opinion letter are, however, distinguishable
from those you describe in your request. The employer discussed in the
November 13, 1970 opinion letter was considering a permanent change in the work
schedule from 52 five-day workweeks to 47 five-day workweeks and 5 four-day
workweeks. In that case, the salary basis requirement was not circumvented
because all the exempt employees were to be paid according to a bona fide
reduction of one-fifth of their salaries for a fixed schedule of five annually
recurring four-day workweeks.
As explained in Wage and Hour
Opinion Letter February 18, 1999:
Consistent with this position, we have stated that a fixed reduction in
salary effective during a period when a company operates a shortened
workweek due to economic conditions would be a bona fide reduction not
designed to circumvent the salary basis payment. Therefore, the
exemption would remain in effect as long as the employee receives the
minimum salary required by the regulations and meets all the other
requirements for the exemption.
The same reasoning was
observed in Wage and Hour Opinion Letter April 30, 1975 (copy enclosed):
Under
the circumstances present in your situation, a fixed reduction effective during
the period when the plant operates on a four day workweek due to economic
conditions would appear to be [a] bona fide [reduction in salary] and the
exemption would remain in effect.
By contrast, your letter
describes a plan in which exempt employees are called at home and required to
take the day off, or are sent home early in the workweek, “during occasional
unplanned and transitory periods of low patient census.” Deductions from pay
in full day increments would be made whenever the employee’s paid time-off
leave was exhausted. Unlike a salary reduction that reflects reduction in the
normal scheduled workweek and is not designed to circumvent the salary basis,
deductions from salary due to day-to-day or week-to-week determinations of the
operating requirements of the business are precisely the circumstances the
salary basis test is intended to preclude. Such a plan is, therefore,
inconsistent with the guaranteed salary basis of payment required by the
regulations.
This opinion is based
exclusively on the facts and circumstances described in your request and is
given based on your representation, express or implied, that you have provided
a full and fair description of all the facts and circumstances that would be
pertinent to our consideration of the question presented. Existence of any
other factual or historical background not contained in your letter might
require a conclusion different from the one expressed herein. You have
represented that this opinion is not sought by a party to pending private
litigation concerning the issue addressed herein. You have also represented
that this opinion is not sought in connection with an investigation or
litigation between a client or firm and the Wage and Hour Division or the
Department of Labor.
We trust that this letter is responsive to your inquiry.
Sincerely,
Alexander J. Passantino
Acting Administrator
*
Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7).
[1]
Unless otherwise noted, any statutes, regulations, opinion letters, or other
interpretive material cited in this letter can be found at
www.wagehour.dol.gov.
[2]
See 69 Fed. Red. 22,121, 22,176-22,179 (Apr. 23, 2004).
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