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I have a question regarding FMLA and FLSA. employee as

I have a question...
I have a question regarding FMLA and FLSA. I am Exempt employee as outside sales, however employer is taking far more deduction from pay then I feel is legal?
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: Texas
JA: Has anything been filed or reported?
Customer: Texas does not have any FMLA guidelines so they have to follow the federal
JA: Anything else you want the lawyer to know before I connect you?
Customer: Nothing has been filed yet or reported. I have submitted my information to the local wage and hour division of Department of Labor however they stated there is a minimum of 30 days to review my information I need to let me know if they can take my complaint.
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Answered in 6 minutes by:
4/4/2017
John
John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5,838
Experience: Exclusively practice labor and employment law.
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Deductions are a matter of state law. I.e., you generally cannot have wage withholding absent your written consent - the exception being payroll tax, court mandated withholding such as for child support or garnishment. I'm not certain what you are asking about the FMLA or how it is relevant to your underlying question.

In any event, yes, you have brought your claim before the correct agency for unauthorized withholding.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers (even though the website already charged you, it does not credit me with the answer unless and until you indicate you are satisfied with the answer). Thank you, ***** ***** wish you all the best with this matter.

John
John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5,838
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Customer reply replied 8 months ago
It would be easier to explain with a phone call. This is complex question dealing with the fact that I am on intermittent FMLA leave. I am an outside sales employee therefore my employer is exempt and has exception under FLSA. Therefore they can keep me as an "Exempt" salaried employee due to being outside sales.
Customer reply replied 8 months ago
I am specifically asking questions about how much the employer can deduct from my regular salary pay four hours missed due to intermittent FMLA.Under Reg. 825.206 (a) "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. However, under that same Reg.(###) ###-####(c) states "This special exception to the salary basis requirements of the FLSA exemption...Employers may comply with the State Law or the Employers's own policy/proactive eunder these circumstances and maintain the employee's eligibility for exemption or for the fluctuating workweek method of pay by not taking hourly deductions from the employee's pay, in accordance with FLSA requirements, or may take such deductions, treating the employee as an hourly employee and pay overtime premium pay for hours works over 40 in a workweek.So the way I interpret that, is due to my FMLA, they CAN proportionally break down my salary into an hourly rate based on 40 hours per week on a normal schedule before FMLA was taken, which is the gross salary of $1923.07 broken down to hourly rate of $24.038 or $24.04 per hour. And now that they are calculating pay by an hourly basis. They have to pay me by true hourly basis so they have to pay my 40 hours per week at that base salary/hourly rate, and then anything above 40 hours they pay at overtime rate?The way they are interpreting this, is that they can keep my Outside Sales Rep exemption to avoid FLSA Minimum requirements, however, they are thinking they can underpay me even though I am on FMLA. My point is that if they have to translate me to an hourly employee due to being on FMLA and submitting daily hour timesheet then I should be treated and paid that way consistently no matter what. The are picking parts of the Regulation that they like and not following the subsection (c) stated in order to keep the exempt status for me as an employee and have the exception if I work 40 hours even after FMLA is submitted they have to pay me for 42.25 and 37.50 hourly, Not the 38.5 or 30.5 hours they have paid me for.Does this question make sense? Am I interpreting this law correctly?Additionally, it is important to know that I have brought this up in writing to them referencing code and they have refused to actually answer my questions about being underpaid and have instead asked me to just "quit" since I am not getting "the paid I need." I have demanded a conference call with the VP of Human Resources again, and they have responded with 10:00 am tomorrow as the only time they can speak to me. I want to make sure I understand the the regulations before we speak tomorrow.
Joycelaw
Joycelaw, Attorney
Category: Employment Law
Satisfied Customers: 102
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Customer reply replied 8 months ago
Does my question make sense?

Yes, give me a few minutes to review the regulations and I'll respond.

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Your interpretation is not correct. What the regulation is stating is hourly deductions may be made due to intermittent FMLA without affecting the FLSA exempt status. Some background is necessary to understand this. Generally, exempt employees cannot have deductions made from their pay in less than a whole day amount, and these may only be made for personal days taken off (not sick days - but as a side note sick leave or PTO can be used to cover sick time without losing the exemption).

825.206 is a special exception just for FMLA leave. In other words, it otherwise would be completely unlawful to withhold on an hourly basis from a salaried employee and maintain the salary exempt status of the employee. But this regulation is stating the DOL will allow it in cases of intermittent FMLA. Despite thier hourly withholding for FMLA leave they can maintain your exempt status.

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Customer reply replied 8 months ago
I understand that under the reg stated above they can can withhold on an hourly basis from a salaried employee, the argument I'm making is I work over 40 hours per week regularly. More like 50-60 hours per week. My point is that if they are breaking down my pay to an hourly equivalent to deduct my intermittent FMLA hours in a week they should deduct FMLA hours from "total hours worked that week"For instance, if I work 60 hour ins a week and I took 4 hours FMLA. Should they not deduct the 4 hours of FMLA from the 60? Otherwise the way they are deducting now is always from a flat 40. So I'm never able to get my full pay. When I'm used to my biweekely gross pay on salary of 1923.04. I'm getting less. My understanding is If they are breaking my time into hours in order to deduct for FMLA then do they not have to consider ALL hours worked. I'm submitting them an excel spreadsheet showing I worked 60 hours one week and then 57 hours the next week and then also showing my FMLA hours however they are refusing to acknowledge or pay me for hours worked. Only pay 40 hours minus FMLA hours. Resulting in a underpayment on salary. I would understand the underpayment of I was only working 40 hours but I'm not. Additionally, I really don't care about overtime pay but I would like to at least get my normal salary every two weeks if I worked beyond 40 hours and with deduction of FMLA still has me at 40 hours worked and above. I need to be able to budget and I'm hardly missing much time on FMLA but it is adjusting my pay considerably.

Frankly, I think the answer to this question could probably be litigated to be flushed out more (probably the reason it hasn't is because attorney/litigation costs) but the best I can answer is that it's supposed to be proportionate to the amount the employee normally works (because this is how the DOL uses it in the regulation); e.g., do you normally work 40, 50, 60 hours a week - you derive the hourly equivalent from that. Of course there could be disagreement between employer and employee because these number may not have been tracked in the past. Likewise the regulation also states "actually worked"...so it's tough to say for certain how this is supposed to be interpreted...and I have searched for DOL advisory opinions on this - finding nothing.

See 29 CFR 541.602(7) - An employer is not required to pay the full salary for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act. Rather, when an exempt employee takes unpaid leave under the Family and Medical Leave Act, an employer may pay a proportionate part of the full salary for time actually worked. For example, if an employee who normally works 40 hours per week uses four hours of unpaid leave under the Family and Medical Leave Act, the employer could deduct 10 percent of the employee's normal salary that week.

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Customer reply replied 8 months ago
I came across that exact same reg. 29 CFR 541.602(7) Interaction with FLSA. In my research and I wrote down the code.I have scoured the DOL website and the Wage & Hour Division website on regulations and even spent a few hours over the weekend viewing official opinion letters on situations similar, and rulings, however I couldn't find anything with this specific of an example. And I'm also trying to keep in mind that Regs and laws are written purposefully for a bit of interpretation so they are not too restrictive. Unfortunately In cases of bad faith or bad intent on either an employee's side or employer's side it causes for litigation like you mentioned.This should all just be a simple conversation and negotiation/agreement made between employee and employer when the claim was initially approved for FMLA to determine, and place in writing, the pay expectations moving forward in a case of intermittent FMLA.The way I read the code above was an explanation if an employee doesn't work "any" hours in a specified week"
Then the employer is not required to pay any of that weekly salary. However, if hours are worked, which is provided in the example of 40 hours and then 4 hours of FMLA. Then the proportionate deduction would be 10% of the employee's weekly salary. That makes perfect sense.I guess where I'm running into issues is my employer and I do NOT agree on "proportionate" because we do not agree on the "average" actual hours worked to do the specific job duties in my job description. They know And have verbally acknowledged that this job typically requires more than 40 hours per week. That is why they hire and pay for this position with a flat base salary. Some weeks you could work 40 hours a week and some you could work 60 hours a week. And then they can argue that the commissions that I earn quarterly are the extra compensation for extra work provided.This all boils down to FMLA retaliation. From the moment I have submitted an intermittent FMLA claim I have gotten nothing but harassed, underpaid, told I should just quit under the pressure, screamed at by my direct manager. Etc etc. And until the pay issue came up I was always able to stand my ground and back it with regulation and filing a formal complaint within the company. Initially, they were paying me my full salary regardless of FMLA hours within a week which I felt was appropriate because I was still always working more than 40 hours per week even with FMLA subtracted. (Which it is important to know that my work computer/ tablet documents and time stamps all my entry and activities so it is easy to prove and support the hours I'm providing them of "actual hours" worked.) and Now, since they have not been able to get me to quit through PIP, performance improvement plans, harassment from my boss, harassment from HR, unlawful sending out emails that were personal between my boss and I about my medical condition to the entire team, etc., they have suddenly adjusted my pay to the "proportionate hourly reduction for FMLA hours." It's already questionable since they were willing to pay my full salary despite FMLA hours in the beginning of my claim and now they are not willing to do so. They can't seem to decide which side of the track they want to be on.And honestly, when I took this job I understood that I would be working long hours for a flat base salary and never tracked my actual hours worked, but since they have been so difficult to work with and downright awful, I'm frustrated and pushing back now. Especially since I am going through health issues, possible cancer diagnosis, and still being loyal and putting time in above and beyond the minimum. I just want to depend on at least my base salary and won't stand for them getting away with the mistreatment. So now I am documenting actual hours worked and providing them a detailed daily spreadsheet with hours worked and any FMLA hours. They are refusing to acknowledge any of the hours worked beyond 40 hours so they can pull FMLA hours from the 40 and can get away with paying me less. Additionally, it is important to know that my pay stub does outline "80 hours as being full time" to get my full salary. Which is technically in writing and technically provides a base rate of hourly pay and a base expectation of 40 hours per week, does it not?I'm up against an employer with thousands of employees and a lot of capital. So this has been quite daunting to push back.I just need to know how to approach the call tomorrow? We are supposed to discuss my complaint of FMLA retaliation (and how they feel they absolutely have NOT retaliated at all) and how they are paying me now and come up with an agreeable option moving forward that works for both parties. However, I am not confident it is going to be any different than what they are paying me now. They clearly want me to quit, so the less pay and the more uncomfortable they can make me then the more likely I am to quit.
Customer reply replied 8 months ago
sorry for any obvious typos however I am trying to submit this on my mobile phone and still work at the same time.

I understand your wanting a way to approach this with an employer - but I really don't have any more for you than what I've already provided. I think the only thing you can do is what you've already done, track hours and explain how that is your "customary schedule". I don't think you can make the argument that for example the DOL will investigate the matter otherwise or subject them to penalty for a salary basis violation...because there's simply no history of the DOL pursuing this or any litigation on the matter. Even the BNA book on FLSA had nothing written about this issue...and that's a book written by nerdy lawyers that specialize in this area.

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Customer reply replied 8 months ago
Lol. Well at least I know I have been able to navigate through the complex labor laws, FMLA, and FLSA Regs sufficiently enough to know that all angles have been at least explored. (Ironically I would probably enjoy reading the BNA Book on the subject. That's a pretty great legal platform and resource).However, I don't give up easily so I have my outline and bullet points written out, and I will give it my best shot. Time to use a poker face and not show my hand. Let's see if they call my bluff. I will regret not trying at least. I have come this far and held my ground so I'm not backing down now. Lol. ��

I understand. Good luck with the matter.

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Customer reply replied 8 months ago
I have an additional question that came up after you gave me advice and I had my call with HR. I thought I had to post it as a new question, and I just posted it, however, it showed you working on it, and then it showed my new question was closed.Am I not allowed to ask any further questions on this matter?
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