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Employment Law/Exempt unpaid breaks

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Question
I work for a small business in the state of Texas.  I am an exempt salaried employee who is required to clock in and out on a daily basis, including my lunch break which is an "unpaid" maximum of 30 minutes.  For every 4 hours I work, I am permitted to take a 10 minute paid break, which I may use towards my lunch break if I chose not use it at a separate time.  I must work a minimum of 80 hours every 2 weeks or various penalties will ensue which can include docked pay and cancellation of that quarters bonus, unless I have available vacation time to cover the hours I am short (on average, I work 42-50 hours a week).  My question is, is it legal for the company to treat me as an hourly employee, but pay me as a salaried exempt employee?  More specifically, if, for example, I was to be under 80 hours in a 2 week period according to their payroll, but would be at or over the required time if my lunch breaks were not taken out of my total time worked, is it legal for them to dock my pay?

Answer
This sounds like they are treating you as an hourly employee and the exemption could be lost and they would have to pay you as hourly rather than as salaried exempt including overtime.

It is not illegal to ask an exempt employee to check in and out. It is illegal to dock for small amounts of time. The salaried exempt employee is paid for the job done and not the hours worked. While the employer may set a schedule to keep the company running smooth and he is allowed to do that the salaried exempt cannot be docked for small amounts of time. If the salaried exempt works part of any day he must be paid for the entire day. If there is vacation time he can be paid from that time, if there is no vacation time he must be paid for any day that he works part of a day. If the salaried exempt is off one full day for personal reasons or if he is off after all vacation time is used for 1 full day than he can be docked for that day.

That being said the company has the right to set a schedule and expect the salaried exempt employee to be there when needed except in special cases such as doctor appointments or other needed appointments. Time should not be docked for these appointments.

If you continue to have problems with being treated as hourly and actually being docked pay for short periods of time off you need to contact your local department of labor. They will contact your employer and talk to him about exempt vs non exempt and the difference.

Shirley

Employment Law

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Shirley McAllister, CPP, PHR

Expertise

I can answer questions about payroll laws and payroll tax laws and Human Resource laws and agencies. I can answer federal payroll and human resource law questions and most states; I do not have a knowledge of the local taxes for cities and counties within the state. If and when I can I will try and send you the website where you can reference the answer and where you can obtain more information as well as a contact number if needed for that particular agency. Some agencies I have worked with are IRS, Department of Labor (federal and state), Revenue Canada (and provincial governments), Inland Revenue, OSHA (0ccupational Safety and Health Administration); Social Security Administration and National Child Support as well as other agencies in Payroll and Human Resources. Some Laws I am particularly familiar with are FLSA (Fair Labor Standards Act), ADA (Americans With Disabilities Act), FMLA (Family Medical Leave Act) COBRA (Consolidated Omnibus Reconciliation Act ) , QDRO's, QMCSO's, and other support orders and garnishments, USERRA (Uniformed Services Employment and Remployment Rights Act,PPA Act (Pension Protection Act of 2006, As well as most other employment type acts. I am also well versed in the Title V Civil Rights Act and the HIPAA (Health Insurance Portability and Accountability Act).

Experience

30 years in Payroll and Human Resources

Organizations
SHRM (Society of Human Resources) APA (American Payroll Association) DOLEA (Department of Labor Employers Association) CPA (Canadian Payroll Association) NAPW (National Association of Professional Women) The Mentoring Network

Education/Credentials
PHR Certification in Human Resources CPP Certification in Payroll in U.S. Payroll Administrator and Payroll Supervisor certification in Canada

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