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I am a salaried exempt employee in Maryland. My employer monitors/tracks any unpaid…

I am a salaried exempt...
I am a salaried exempt employee in Maryland. My employer monitors/tracks any unpaid overtime hours and incidental absence hours (illness, medical appts, personal business) that I work so that it is displayed as two separate banks (although we are told they are not "banked"). I had to leave 3 hours leave early one day recently to help my 13 year old daughter clear out her locker at the end of the year. I did had more unpaid overtime hours than Incidental Absence hours but I had to use my Vacation time and was told I could not "flex" my time unless I worked an extra 3 hours in the same week. I thought being salaried and exempt precluded this type of salary docking. Is this standard practice under the Maryland FLSA regulations?
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Answered in 27 minutes by:
6/28/2010
Legalease
Legalease, Lawyer
Category: Employment Law
Satisfied Customers: 16,440
Experience: 13 years experience in employment law, unions, contracts, workers comp law
Verified

Hello. I have bad news and good news. Smile

 

First, the company does not have to have "flex time" or keep track of "overtime" worked by any salaried employee in order to compensate you for it with "incidental absences" time. If you are salaried, then your hours can exceed 40 hours by whatever the job requires and the company does not have to compensate you in any manner for that time. That was the bad news.

 

The good news is that the HR regulations are company policy and have been held by courts to rise to the level of a contract between the employer and the employee. So, if they state in writing that this policy is available, then you have a right to expect it as part of your overall employment package and you can sue for breach of contract. if they do not meet their end of the bargain.

 

Finally, we come to the application of this policy by your manager. When there is a written company policy in place, the company is charged with the responsibility of setting up guidelines for that policy to be applied in a clear, consistent and non-discriminatory manner across every employee who is similarly situated (in the same job, or to all salaried employees). The company is running a big risk in permitting individual managers to apply this policy (or deny the benefits of this policy) without a clear guideline in place of what items of "personal" nature rise to the level of the employee being permitted to take the "flex time" to take care of it. For instance, what if your manager is an atheist and refuses to permit employees under his direction to take "flex" time for religious holidays? Or, the manager begins a policy of permitting a person to use "flex" time for some religious holidays and not others or for some religions and not others? Apply this example scenario to race, age, disability and you get the picture -- a lower level manager who is practicing "hidden" discrimination against employees of the company.

 

Now, what should you do about this is the big question here. You have to decide if you are so secure in your position that if you go to human resources department and let them know what this manager is doing regarding the "flex time" arrangements that the company will not try to turn this on its head and start coming after you for reporting this. If you do decide to go to the HR department (or whomever in the company is designated to handle personnel matters -- and if none, then perhaps a conversation with the manager's supervisor is in order), I suggest that you discuss the written "flex time" arrangement, and the company is opening itself up for litigation by letting these managers apply this policy in such a "willy-nilly" fashion that the managers can use to discriminate if they choose to handle the "flex time" in that fashion. Suggest that the company, if it wants to restrict the "flex time" in this manner, then they should put together a clear and consistent policy for doing so across the board.

 

GOOD LUCK

 

Please press the GREEN ACCEPT BUTTON so I will be paid for my time

 

THANK YOU

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Customer reply replied 8 years ago
Great response, but more questions ... we do earn Floating Holidays as well as Vacation time so it isn't a matter of not having enough time to use in this fashion. The term at my corporation is "Incidental Time" which my be used for medical reasons (employee and family appointments and illness and Personal Business that cannot reasonably be performed outside of normal working hours. My manager has three teenage daughters herself and I almost feel this is a sort of reverse discrimination on her part due to her own defensive work practices she has developed over the years (pure speculation on my part, obviously). My concerns now are: 1.) Legally speaking, how much personal information must I divulge to her in order to utilize this policy, and 2.) Who legally is allowed to make a determination regarding the definition of "Personal Business".
This unfortunately is just the tip of the iceberg with this woman. This is a multibillion dollar defense contracting corporation with unusual human resources practices, at least compared to other places I have worked in the healthcare Industry, that is now entering into the health insurance world of of self-insuring their employees and opening up "Wellness Centers". I am a Nurse Practitioner in one of the newly-formed Centers. I don't know how long I wil last.

Thank you!!!!!

Hello again. The answers to both of your questions all have to do with the answer I set out above. There is no "one person" in a company who "legally" should be determining what "personal business" is under these circumstances. That was my point above. Because the company implemented a policy that they did not have to legally implement, the only responsibility that the company has under the law is to make sure that the policy is applied consistently and evenly over the workforce so that the managers who are implementing the policy are not doing so in a manner that may be seen as discriminatory. Because your company permits your manager to make these decisions, then you must comply with whatever information this manager requires in order to get the time off that you need -- no matter what that information is. THat is why you have to bring this matter to either human resources or to a higher manager than your own. Let them know what happened and suggest to them what I told you here -- that they should implement a written policy for these managers regarding what is considered medical time, religious time, personal time, etc -- that way these managers (including yours) will not make a big mistake of refusing someone time off for a reason that might seem discriminatory to someone else.

 

I hope that explains it a bit better?

Legalease
Legalease, Lawyer
Category: Employment Law
Satisfied Customers: 16,440
Experience: 13 years experience in employment law, unions, contracts, workers comp law
Verified
Legalease and 87 other Employment Law Specialists are ready to help you
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Customer reply replied 8 years ago
Yes I do understand and you don't have to comment any further if you have nothing further to add but I did bring it to the attention of HR who told me she felt it was an appropriate use of "Incidental Time" but it is up to my manager to decide this. In the interim, as I already questioned her about the issue, my manager also conferred with a Human Resource rep. to whom the HR person I spoke with reports. The upper level HR rep. told me that it is up to my manger to decide what is an appropriate use of time. I will again contact my HR rep. and discuss with her the points you made concerning a more defined and across the board policy. Hopefully this won't crate a problem regarding retaliation. I'm surprise that the managers are allowed to interpret these policies as they do. If they fire me my manager, who is an MD, will have to do my job ... but she doesn't know how because she's been sitting behind a desk practicing occupational medicine for 30 years! She hates me...........Thanks for listening! You have been very helpful.

 

Perhaps your HR reps are not thinking of the possible broader legal ramifications if one of the managers makes a BAD decision on who and why to deny personal time. Just as an example -- what if a Jewish person asks for a particular holiday off -- and it is one of the minor Jewish holidays that is not a legal holiday -- so the manager decides that it is too busy to give the day off and all hell breaks loose when the Jewish person reports the company for discrimination.

 

At the very least, HR should have a lawyer review the policy.

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Customer reply replied 8 years ago
Yes ... but my manager would never do that because she is a very smart cookie and flexes her managerial muscle only in ways that others who are not personally involved won't notice or see the reality of the situation. My foray into this corporate world has been a real eye opener. I have to figure out what to do ... when I recently questioned some definitely "shady" practices of her old occupational health clinic which she wanted to continue in our new clinic, she even told me that I shouldn't be too concerned about the outcome of my actions relative to treating patients/employees because I can't be sued as we are all corporate employees (not true and she knows it!) We function as an Urgent Care/Primary Care/Wellness Center. I must be credentialed thru Aetna and have professional malpractice insurance in order to do this job. I had been wrestling with to whom and how to report that one when she pulled the latest one on me. When I started this job six months ago initially she threw me off base with all of her talk about "ethics", but I see through her and I tell you ... the things that come out of her mouth are downright scary.
Thanks for your thoughtful answers. Very helpful!
GOOD LUCK
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