Question 

We have a new employee who is in his second week of work.  He is classified as exempt under the Fair Labor Standards Act (FLSA). He needs to take two days off to deal with a family emergency but has accrued very little Paid Time Off and is in his 90-day introductory period.  Can we dock his pay for those days? 

Answer 

Yes, this is one instance when you can deduct from the salary of an employee who is classified as exempt under the Fair Labor Standards Act (FLSA, see regulations at 29 CFR § 541.602). While the general rule under the FLSA is that exempt employees must be paid their weekly fixed salary without reduction, there are several exceptions: 

1. During the first or last week of employment – Full-day and partial-day deductions are allowed. 

1. Personal days – Full-day absences only may be deducted, not partial days. 

1. Sickness – If there is a bona fide sick leave plan, then partial- and full-day deductions are generally not allowed, but if the employee is not yet eligible for the plan or has exhausted their time under the plan, then full-day deductions may be made (not partial days). 

1. Disciplinary suspension – Full-day deductions may be made, but not partial days, for a suspension for violating a workplace rule. 

1. Safety violations of major significance – Employers can dock pay as a penalty for significant safety violations, in full-day increments only. 

In the case of your new employee, since the deductions are for full days, they are permissible either as personal or sick days depending upon the nature of the emergency. 

Around this time of year, some employers plan for a holiday shutdown week.  If an exempt employee performs no work during that week, then it can be unpaid.  For closures of less than a week, no deduction may be made from an exempt employee’s pay for a temporary shutdown. 

Partial and full-day deductions are allowed in the case of FMLA leave.  Often an approved intermittent leave will result in deductions of a number of hours rather than full days.  Employers should be cautious about statutorily protected activities such as jury duty and military service, which cannot result in deductions of less than a full week of pay, although an employer may deduct from the employee’s pay the amount received by the employee for jury or military service. 

Members with questions about the FLSA and deductions from pay, or any human resources matter may reach out to the AIM HR Helpline at 800-470-6277.