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JB Umphrey
JB Umphrey, Lawyer
Category: Employment Law
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Experience:  Assisting employees and employers for over 14 years.
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If I take a sick day or a day off and I am on salary working

Resolved Question:

If I take a sick day or a day off and I am on salary working 72 hours a week can they deduct thoose days from my pay?
Submitted: 6 years ago.
Category: Employment Law
Expert:  JB Umphrey replied 6 years ago.

MI-Lawyer :

Thank you for using JustAnswer!

MI-Lawyer :

What do you do for a living? Why are you salaried?

MI-Lawyer :

Are you still there?

JACUSTOMER-kp2bak6y- :

I am working for a Bakery. And, yes I am still there. I am working 72 hours a week and took one day off and one sick day in the same week. Can they deduct that time from my pay?

MI-Lawyer :

Do you supervise employees?

MI-Lawyer :

I'm trying to understand why you are salary.

JACUSTOMER-kp2bak6y- :

Yes

MI-Lawyer :

Okay.

MI-Lawyer :

The answer is two-fold.

MI-Lawyer :

As an exempt employee (salary), if you work a portion of the week, your pay cannot be docked.

MI-Lawyer :

If you do not work at all for a week, you do not have to be paid for the week.

MI-Lawyer :

Now, if your employer wants to dock your pay for the day; then, what can happen, is that you lose your salary status, you become an hourly employee and your employer can be required to pay you overtime for time that you work in excess of 40 hours a week.

MI-Lawyer :

Are you clear on what it is that I'm saying?

MI-Lawyer :

This can play out two different ways.

JACUSTOMER-kp2bak6y- :

Please explain. I am 58 and I owned my own business and I just tried to be fair to my employees. I was upset when I asked for one day off and a sick day after working from 7:AM-7:00PM with no lunch or break, and they did not pay me for the two days I was off.

JACUSTOMER-kp2bak6y- :

Please respond. I am meeting with them Monday to discuss this. I want to know what they can do and what I should expect. Thank you

MI-Lawyer :

If you work 1 day a week or 7 days a week, you get paid the same amount. Your pay cannot be docked.

MI-Lawyer :

If you work 0 days is a week, the employer does not have to pay you at all.

MI-Lawyer :

Now, if the employer insists on just paying you for the time that you actually work, for purposes of the Fair Labor Standards Act, you lose your "exempt" status. You're no longer an exempt employee. You're no longer a salary employee. You're an hourly employee and that means that you get time and a half pay for anything worked over 40 hours in a week.

JACUSTOMER-kp2bak6y- :

So if I can't work one day they still have to pay me?

MI-Lawyer :

So, you see, if the employer wants to take and dock your pay for a day, it can really cost them in the long run.

MI-Lawyer :

Yes, they still have to pay you.

MI-Lawyer :

Salary means that you get paid the same amount no matter how many hours you work in a week. If you work 1 hour in a week or 80 hours in a week, you get the same pay.

MI-Lawyer :

If you work no hours in a week that's the only time the employer doesn't have to pay you.

MI-Lawyer :
JACUSTOMER-kp2bak6y- :

What do you mean it could cost them in the long run

MI-Lawyer :

Do the math.

MI-Lawyer :

Take your weekly compensation rate.

MI-Lawyer :

Divide it by 40.

MI-Lawyer :

That's your hourly rate.

MI-Lawyer :

If you work 72 hours, divide it by 72 and that's your hourly rate.

MI-Lawyer :

Now take 32 of those hours and multiply it by 1.5.

MI-Lawyer :

Because you're going to start being paid overtime.

JACUSTOMER-kp2bak6y- :

According to what I have looked up, if you are salaried they can expect over a hundred hours a week

MI-Lawyer :

It will cost the employer a heck of a lot more in overtime pay over the long haul that it will be to give you a paid sick day.

MI-Lawyer :

Yes, then can schedule you to work over 100 hours a week, that's true.

MI-Lawyer :

HOWEVER,

MI-Lawyer :

if they treat you in such a way that you lose hour salary status, then they have to start paying you hourly.

MI-Lawyer :

That means paying you for each hour worked and time and a half for any hour over 40.

JACUSTOMER-kp2bak6y- :

However if they expect me to be there from 7AM-7:PM and I don't get a lunch break or any break during the day. What happens then?

MI-Lawyer :

It depends if you're an hourly or salary employee at that time.

MI-Lawyer :

What do you want?

MI-Lawyer :

If you're meeting with them soon, what do you want?

JACUSTOMER-kp2bak6y- :

I want them to be fair. I think going in at seven and I wark til six or seven PM they should not dock me if I take 1 day off and have 1 sik days during a month.

MI-Lawyer :

Then tell them that they cannot dock your pay under the Fair Labor Standards Act because you are a salary employee and, if they do, you will file a wage claim with the Texas Workforce Commission.

JACUSTOMER-kp2bak6y- :

So they can't dock me?

MI-Lawyer :

That's what I've been saying all along (unless they want to treat you as an hourly employee).

JACUSTOMER-kp2bak6y- :

And according to the Texas law, there is no laws governing the hours a non-exempt employee is supposed to work

MI-Lawyer :

Correct, however a non-exempt (that is an hourly employee) must be paid time and a half for anything worked in excess of 40 hours in a week.

MI-Lawyer :

An exempt employee is salary.

MI-Lawyer :

A non-exempt is hourly.

JACUSTOMER-kp2bak6y- :

I don't get that, from what I have read there are no limits for the hours a non-exempt employee works. Please let me know know I need this for Monday

MI-Lawyer :

Right, there are no limits for the number of hours a person can be scheduled to work.

MI-Lawyer :

If you are salary/exempt, you get paid the same no matter what.

MI-Lawyer :

If you are hourly/non-exempt, you get paid time and a half for anything worked in excess of 40 hours in a week.

JACUSTOMER-kp2bak6y- :

So, I have to work whatever hours they wish. However, They do have to pay me if I take one day off and one sick day after working for 3 weeks from 7AM-7PM

MI-Lawyer :

You have to work the hours scheduled.

MI-Lawyer :

If you are a salary employee, you get paid the same weekly wage even if you're gone for 1 days.

MI-Lawyer :

 

MI-Lawyer :

Are you able to see the ACCEPT button on your screen?

JB Umphrey and other Employment Law Specialists are ready to help you
Customer: replied 6 years ago.
I can't accept it is already checked. Please answer the question that if I work for a salary can they dock my pay if I take one day off and one sick day if I work 72 hours a week. Thank You.
Expert:  JB Umphrey replied 6 years ago.
As a salary employee, the pay cannot be docked for one missed day of work.
JB Umphrey and other Employment Law Specialists are ready to help you