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March 2, 2009
Dear Name*:
Enclosed is the response to
your request for an opinion letter signed by the then Acting Wage and Hour Administrator
Alexander J. Passantino on January 16, 2009 and designated as Wage and Hour
Opinion Letter FLSA2009-25. It does not appear that this response was placed
in the mail for delivery to you after it was signed. In any event, we have
decided to withdraw it for further consideration by the Wage and Hour
Division. We will provide a further response in the near future.
The enclosed opinion letter,
and this withdrawal, are issued as official rulings of the Wage and Hour
Division for purposes of the Portal-to-Portal Act, 29 U.S.C. § 259. See
29
C.F.R. §§ 790.17(d), 790.19;
Hultgren v. County of Lancaster, Nebraska, 913 F.2d 498, 507 (8th Cir.
1990). Wage and Hour Opinion Letter FLSA2009-25 is withdrawn and may not be
relied upon as a statement of agency policy.
Sincerely,
John L. McKeon
Deputy Administrator for Enforcement
FLSA2009-25
This Opinion Letter is withdrawn.
January 16, 2009
Dear Name*:
This is in response to your letter requesting an opinion
regarding whether a hospital may take deductions from the salary of an exempt
Registered Nurse (RN) for absences of one or more full days, but based on the
number of work hours missed, without running afoul of the requirements for the
professional exemption under section 13(a)(1) of the Fair Labor Standards Act.[1]
It is our opinion that when an employee misses an entire day of work, an
employer may make deductions based upon the number of work hours missed.
Your client employs an RN who is paid a salary to be on call
and available for surgery from 2:30 p.m. on Friday to 6:30 a.m. on Monday. The RN is not paid extra compensation when she is called to the hospital for
surgery. She is given one weekend of paid time off every three months. You
ask us to assume that the RN otherwise meets all the requirements of the Part
541 exemption for learned professionals. Additionally, you have stated that the
RN is paid a salary in excess of $455 a week. The hospital would like to know
the proper method for making a deduction from the RN’s salary when the RN is
not available to be called for all hours either on a Friday, Saturday, or
Sunday. The hospital is aware that it may require the RN to use paid vacation
or sick leave for the time missed. Your question is limited to occasions where
the RN is unavailable for call for a full day rather than a portion of the day.
In order to qualify for the section 13(a)(1) exemption,
employees must be paid on a “salary basis.” For a plan to qualify as payment
on a salary basis, the employee’s predetermined salary amount must not be
subject to reduction because of variations in the quality or quantity of the
work performed. 29
C.F.R. § 541.602(a). Exempt salaried employees must receive their full
salary for every week in which they perform any work, regardless of the number
of days or hours they work. 29 C.F.R. § 541.602(b), however, provides several
permissible deductions from an exempt employee’s salary, including in relevant
part:
(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
(including work-related accidents) if the deduction is made in accordance with
a bona fide plan, policy or practice of providing compensation for loss of
salary occasioned by such sickness or disability.
* * *
(5) Deductions from pay of exempt
employees may be made for unpaid disciplinary suspensions of one or more full
days imposed in good faith for infractions of workplace conduct rules.
29 C.F.R. § 541.602(b)(1) - (2), (5). Therefore, deductions
from an exempt salaried employee’s salary may only be made on a full-day
basis. As explained in the preamble discussion of this section of the current
rule, “[w]e believe that partial day deductions generally are inconsistent with
the salary basis requirement, and should continue to be permitted only for
infractions of safety rules of major significance, for leave under the Family
and Medical Leave Act, or in the first and last weeks of employment.” 69 Fed.
Reg. at 22,178. As provided in 29 C.F.R. § 541.602(c),
[w]hen calculating the amount of a
deduction from pay allowed under paragraph (b) of this section, the
employer may use the hourly or daily equivalent of the employee’s full
weekly salary or any other amount proportional to the time actually missed by
the employee. A deduction from pay as a penalty for violations of major safety
rules under paragraph (b)(4) of this section may be made in any amount.
(emphasis added). Therefore, under the express terms of
section 541.602(c), an employer may calculate a deduction for a full-day
absence based on the number of hours actually missed. Thus, for example, if
the RN was scheduled to be on call Friday from 2:30 p.m. to midnight, but was
unable to work any hours that day for one of the reasons described in section
541.602(b), the hospital could deduct 9.5 hours from her salary (i.e.,
the amount actually missed) in accordance with section 541.602(c). Again,
however, you should note the deductions are not permissible if the employee is
absent for less than one full day of work.
This opinion is based exclusively on the facts and
circumstances described in your request and is given on the basis of 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 questions presented. Existence of any other factual or
historical background not contained in your request might require a different
conclusion than the one expressed herein. You have represented that this
opinion is not sought by a party to a 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).
Unless otherwise noted, any statutes, regulations, opinion letters, or other
interpretive material cited in this letter can be found at
www.wagehour.dol.gov.
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