Psst… check out these FLSA posts from 2016:
- FLSA Primer
- New PayScale Data Shows Companies Complying with Proposed FLSA Changes Anyway
- One Company’s Ride on the FLSA Coaster
- 3 Things You Need to Know about the New FLSA Overtime Rules
Exempt Employees and Rules Requiring Specified Hours
You probably are aware that exempt employees generally should be paid the same salary regardless of the number of hours they work or the quantity of work they produce. But, can you require them to work a certain schedule and track their hours?
Q: Can we require salaried, exempt employees to work a specific schedule and to clock in and out for any purpose other than to track paid time off? We have several exempt managers who need to be at work during the same hours that the employees they supervise are here. But, we are concerned that if we require the exempt employees to work a certain number of hours and keep track of the hours worked, we risk that they will be considered hourly, nonexempt employees entitled to overtime.
A: Interestingly, the Fair Labor Standards Act (FLSA) and its implementing regulations do not specifically prohibit employers from requiring exempt employees to work a particular schedule or to track the hours they work. In fact, the Department of Labor (DOL), in the preamble to revised exemption regulations, stated that employers may require exempt employees to work a specific schedule and to record and track hours without affecting their exempt status.
However, you should be aware that if you require exempt employees to work a certain number of hours and account for their work time on an hourly basis, you may jeopardize the exempt status of these employees if the accounting has the effect of treating them like hourly workers. This practice could make the employer liable for past overtime.
For example, if the exempt employee’s salary fluctuates based on the number of hours worked or the employee’s pay is docked for hours not worked in any day, the employee most likely will not be considered exempt. (However, interestingly, the FLSA exemption regulations allow you to pay an exempt employee additional compensation without jeopardizing the employee’s exempt status. This additional compensation can be paid on any basis, including a flat sum, bonus payment, straight-time hourly amount, time and one-half, or any other basis, including paid time off.)
You generally may track hours worked for purposes unrelated to the employee’s pay (such as to account for work time billed to clients or performed under a federal contract) and may record daily attendance. And, you also must comply with applicable wage and hour recordkeeping requirements for exempt employees, such as recording the time and day of the week the exempt employee’s workweek begins and total pay for the week.
Accordingly, if you require exempt employees to work a specific number of hours or arrive at a specific time (and have them clock in and out to show that they are complying with these requirements), you need to make sure that these policies do not appear to be treating them as nonexempt, and thus jeopardize their exempt status. You best practice, then, is to show that these requirements are directly related to the exempt employees’ job duties. So, you are wise to tie the exempt employees’ required schedule to their managerial job duties, instead of simply focusing on the number of hours the exempt employees work or their starting time. For example, if an employee manages nonexempt employees who must be at work between 9 a.m. and 5 p.m., you can require the exempt manager to be at work during the same hours to supervise properly.
Robin Thomas, J.D.
Personnel Policy Service, Inc.
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