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FMLA FAQs: All about exempt employees

Posted May 17, 2018

Joe Employee is a professional at your organization and, as such, is paid the same salary each week regardless of the number of hours he works per week. Joe Employee was doing some maintenance on his house over the weekend, and broke his ankle. This required him to stay at home and not work due to the pain killers he was given (it was a bad break). After a week or so, he was able to return to work, but only for 30 hours per week instead of his usual 40 – 70 hours. Rachel, the company leave administrator, was left wondering how to deal with the situation, including his pay.

Employees who are exempt from the overtime and minimum wage provisions under the Fair Labor Standards Act (FLSA) garner some special attention (and questions) under the Family and Medical Leave Act (FMLA). Here are some related common questions and their answers.

Q: Do we count exempt employees for purposes of employer coverage?

A: Yes, even if they are part time, are temporary, are not a U.S. Citizen (or are not authorized to work in the U.S.), or took or will take military leave. They need to be working in the U.S., however.

Q: Employees are eligible for FMLA leave if they have worked at least 1,250 hours in the 12 months before leave is to begin. How do you calculate hours worked for exempt employees if they do not complete time cards?

A: If you do not otherwise keep track of how many hours an exempt employee normally works, you will have the burden of trying to disprove an employee’s claim regarding how many hours he or she worked. If tested, the benefit of the doubt will go to the employee.

Q: How much leave are exempt employees entitled to if we do not know what their normal workweeks are?

A: You and the exempt employee are generally expected to have a written agreement on the employee’s normal schedule or average hours worked each week. This agreement would be the basis of determining the employee’s FMLA leave entitlement.

Q: May we dock an exempt employee’s pay when he or she takes part of a week off as FMLA leave?

A: As a general rule, the FLSA requires that if exempt employees perform any work during the workweek, they must be paid the full salary amount. You are not, however, required to pay exempt employees the full salary for weeks in which they take unpaid FMLA leave. You may pay a proportionate part of the full salary for time actually worked. For example, if an exempt employee who normally works 40 hours per week uses four hours of unpaid leave under the FMLA, you may deduct 10 percent of the exempt employee's normal salary for that week.

Q: Is it ok to reclassify an exempt employee to hourly, in effort to track time?

A: Yes, you may convert an exempt employee to hourly during a period of intermittent or reduced schedule FMLA leave. Determining the hourly rate could have some challenges. Again, this is where having a written agreement regarding the employee’s normally worked schedule comes in handy. You need to have something supporting the rationale behind the hourly rate determination.

Note: between converting an employee to hourly or docking the exempt employee’s pay, the latter is usually preferable. Of course, you are not mandated to dock an employee’s pay or move them to hourly; you may choose to continue to pay them their full salary while on intermittent FMLA leave.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS.

FMLA for Supervisors TrainingJ. J. Keller's FMLA for Supervisors Training gives supervisors and managers critical Family and Medical Leave Act information.


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