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Can an employer in Wisconsin prorate an exempt salaried

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Can an employer in Wisconsin prorate an exempt salaried employees pay if they are on a FMLA which states that they can work from home 5hrs a day and the employer has agreed to this?
Submitted: 2 years ago.Category: Employment Law
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1/21/2016
Employment Lawyer: Allen M., Esq., Employment Lawyer replied 2 years ago
Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,343
Experience: Employment/Labor Law Litigation
Verified

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

I'm not 100% sure of your question, but I think what are you asking is if it is permissible for an employer to not pay full pay for days when partially worked, even for a salaried employee.

Typically, the answer would be no. An employer can't prorate the daily pay of an salaried exempt employee if they work any hours during that day. So, if you worked 5 hours in a day, under normal circumstances you'd have to be paid the full day (though they could deduct hours from vacation).

However, FMLA is a special exemption to the salaried exempt rule. It has it directly in the FMLA statute. You can see that here at 29 CFR 828.206 which discusses the interaction between FMLA and the Fair Labor Standards Act (FLSA) that creates the "salaried exempt" concept.

Section (a) clearly states "If an employee is otherwise exempt from minimum wage and overtime requirements of the FLSA as a salaried [employee], providing unpaid FMLA-qualifying leave to such an employee will not cause the employee to lose the FSLA exemption. This means that under regulations currently in effect, where an employee meets the specified duties test, is paid on a salary basis, and is paid a salary of at least the amount specified in the regulations, the employer may make deductions from the employee's salary for any hours taken as intermittent or reduced FMLA leave within a workweek, without affecting the exempt status of the employee. "

So, on that basis, the employer could absolutely allow a salaried exempt employee to work from home for 5 hours a day, and pay that employee a prorated payment based on that partial day's work, with the remainder being covered by FMLA leave.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Also, feel free to request me in the future, if you have questions concerning a different matter.

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Employment Lawyer: Allen M., Esq., Employment Lawyer replied 2 years ago

Hello, I wanted to check in and make sure that there was not any additional information that you required. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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