Intermittent FMLA for exempt employees
Posted March 19, 2011
Many employers don’t require exempt employees to record the hours they work each week. This is acceptable under federal regulations because employers need to keep records of hours worked only if the time worked affects the weekly compensation. Since exempt employees get the same salary each week, regardless of how many hours they work, they aren’t required to provide a weekly timesheet (unless state law requires tracking hours, and some states do).
Although not mandated by law, employers can require exempt employees to record their hours each day or week — without threatening the exempt status. The federal Wage and Hour Division has published several Opinion Letters clarifying that this is acceptable as long as the records aren’t used to make unlawful salary deductions. So why track hours? Keeping a record of the hours worked could help identify the amount of leave available under the Family and Medical Leave Act (FMLA) if an exempt employee takes intermittent leave.
Determining leave entitlements
Tracking intermittent FMLA leave has long been a headache for employers. Employers must count the leave using weeks, but employees can take leave in smaller increments (including partial days). In that case, intermittent leave is recorded in fractions of a week. If an employee takes one day off, it might be 1/5th of a week. Similarly, if an employee who normally works 40 hours takes one hour of intermittent FMLA leave, the employee has taken leave for 1/40th of a week.
The problem is that the 12 weeks of FMLA are not based on a 40-hour workweek. An employee who works 40-hour weeks might have 480 hours of intermittent leave available (the equivalent of 12 weeks). However, an employee who works 45-hour weeks would have 540 hours of intermittent leave available. If the work schedule varies, the time worked over the previous 12 months must be averaged to determine a typical workweek. Obviously, if the employer under-estimates the hours worked, the employee could be denied FMLA protections for absences that should be covered.
Notifying employees
The employer must also notify employees of how much leave has been used, and employees may request a running total every 30 days. The potential problems of failing to track the working time should become evident. If an employee is told that he’s used 200 hours of the 480 available hours, but the employee understands that he should get 540 hours of leave, he may realize that he’s “missing” 60 hours of leave. Misrepresenting the amount of leave could lead to a claim of interference with FMLA rights — and such claims have gone to court.
So even though federal law may not require tracking the hours worked by exempt employees, the failure to do so could create liability if the employee needs intermittent FMLA leave. At best, the employer would have to rely on the employee’s estimate regarding the hours worked. If that estimate is inflated, the employee might have to be given greater FMLA protections because no documentation exists to refute the claim for continued coverage.
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