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Pay rules differ for nonexempt, exempt employees

By Joan Cirillo, Globe Correspondent, 2/23/03

Need advice about managing your career or your workplace? The Job Doc can help. Our specialists can answer your questions on topics ranging from career transitions to management issues. E-mail queries to jobdoc@globe.com, or send letters to Job Doc, c/o the Boston Globe, P.O. Box 2378, Boston, MA 02107-2378. Letters may be edited for clarity and length.

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Is it legal to dock a salaried employee's pay for not working on the holidays?

Your question is difficult to answer without more information. However, in order to get you started, I will make some assumptions and work from there.

The answer to this question is governed by wage and hour laws such as the Fair Labor Standards Act (FLSA), and it depends partly on what you mean when you call the employee a salaried employee. I will assume that when you say the employee is salaried, you mean that the employee is a salaried exempt employee under the FLSA, rather than a nonexempt employee, because that is a far more common situation.

A salaried ''exempt'' employee is a bona fide executive, administrative or professional employee, or outside salesperson, who earns a certain amount per week. The employee is called exempt because he or she is exempt from the law's requirement that employers pay their employees overtime for any hours worked over 40 per week. In order to use this exemption, the employer must pay the employee his or her full salary for each week the employee performs at least some work, even if the employee does not perform work on some days. However, an employer can deduct from a salaried exempt employee's pay if the employer was open for business, and the employee took a day or more off for a personal reason.

The Department of Labor takes the position that a holiday is a personal reason, so an employer can deduct a holiday from a salaried exempt employee's pay if the employer was open for business that day and the employee chose to take the day off. An employer cannot deduct for a holiday if the employee was available for work, but the employer was not open for business on that day.

A deduction from a salaried exempt employee's pay should take the form of a charge against the employee's accrued personal or vacation leave if the employee has such accrued leave. If the employee has no such accrued leave, then the employer can actually reduce the amount paid to the employee that week.

If you have questions about whether you qualify as a salaried exempt employee under the FLSA, you may contact the Wage and Hour Division of the Department of Labor at 617-624-6700.

Employer policies viewed as harsh

I work in a graphic design studio outside of Boston. The policies here seem to be rather draconian. We get a mere 10 days (vacation) off a year - no matter how long we work here. We also do not observe holidays other than the major ones. My boss says that this ''is how everyone does it.'' He claims that ''no one'' takes Presidents' Day, Martin Luther King Jr. Day, Columbus Day or Veteran's Day. In addition, there are no raises and there is no compensation for hours worked over 40. He tells us that we are all exempt (even me - I am administrative, but have no power to hire, fire, or recommend; nor do I have any access to salaries, etc.). We don't even get into the fact that we get paid on the 1st and the 16th of every month, and if that date falls on a holiday or weekend we have to wait the extra days before we get paid. I don't think that I can go on working here much longer if we can't convince him that his workplace policies are hardly generous. What do the majority of employers provide when it comes to holidays, vacation and pay reviews?

Victoria Cohen from Menard, Murphy & Walsh LLP says, ''An employer generally has no legal obligation to provide pay for any time not worked, whether for vacations or holidays, in the absence of a contract with an employee or a union. An employer also has no legal obligation to review its employees or raise their salaries at any time unless it has a contract to do so. Further, the employer is entitled to pay its bona fide executive, administrative and professional employees semimonthly, as seems to be the case here. Wages need only be paid within six days of the end of the pay period in which they earned. So as long as the employer complies with this law, it has some leeway to wait until after a holiday or weekend to pay wages.''

I think you will find that most employers do offer paid vacation days and holidays, as well as regular reviews and pay raises. They do this for a variety of reasons such as keeping up employee morale and productivity, competition for the best employees, having a record of performance, etc.

I would lay low during this recession, but when the economy becomes more robust, I would begin a job search and see if there isn't another opportunity where you will feel more valued. If your boss starts to lose some of his key staff, he might have to rethink his management principles.

Crafting resume for interim job

I've been out of work for six months and have had no luck landing a job in my chosen field, which is information technology. To put bread on the table, I am thinking about taking some kind of interim job such as working as a security guard or a waiter. Two questions: Do I need to put together a different kind of resume for the purpose of landing such a position? And once I'm hired, how much notice do I need to give the employer if something in my field comes along?

You are not alone. There are many folks taking interim positions such as security guard or waiting tables until the economy improves and more job opportunities in their chosen field open up.

Yes, I would put a different resume together for these jobs. Clearly, an owner of a restaurant is looking for previous experience waiting tables at a similar type of establishment, just as a security company would be looking for any previous experience in a similar type of environment (don't forget your military experience if you have it).

If you have the experience, by all means list it. If you do not, try using what is called a functional resume. A functional resume is useful when you want the reader to focus on your skill sets and not necessarily your work experience.

Put the heading at the top just as you would with any resume. Then, write an objective such as ''Seeking a wait staff position where I can use my strong customer service skills and love for good food.''

Next, select three skill sets that you believe are real strengths. Under each, list some examples of how you have demonstrated that skill set in the past in a bulleted format. For example, one skill set might be strong customer service skills. Under that you might say, ''Served on help desk for two years working with internal customers who were having hardware or software problems.''

Another example might be ''Won 'Employee of the Month' award three times at last company for providing excellent customer service to both internal and external customers.'' Other skill sets that might be of interest would be strong organizational skills. Provide some examples of that. Another skill set might be excellent project management skills.

List your work experience below the skill sets. You only need to go back 15 years. List the company, title, and years of service. You can list education if you have a bachelor's degree, particularly if you are looking for a position in an upscale restaurant. It is assumed on most adult resumes that you have a high school diploma or the equivalent. That is all you need to provide on a functional resume.

In terms of giving notice when you land a position in your field, two weeks notice is the customary courtesy. This gives the employer a chance to hire a replacement and perhaps have you train him/her before you move on.

Giving notice is not mandatory but it is a courtesy to the employer who hired you. The Job Doc rule is to try very hard not to burn any bridges. You never know when you might need this employer as a reference, or she or he might become a potential client at another job. Best of luck to you.

Confronting an employee

I am a supervisor at a large financial services company. During the holidays, the company had several social events where it offered alcoholic drinks at an ''open bar.'' At one event, I watched a new employee go back to the bar repeatedly. I must say he did not show signs of being drunk. However, at another function, he got so drunk he fell asleep at the table. I have never suspected him of drinking on the job but it might explain some tremors in his hands and some ''zoning out'' on occasion. Should I say anything to him?

Yes, you might say, ''Gee, I was concerned about you at the holiday party. It appeared that you fell asleep at the table. Are you OK?'' The employee may have a perfectly good explanation of why he fell asleep at the table.

On the other hand, this exchange may open up a dialogue where he discloses to you that he is an alcoholic. Be careful here. The employee must self-disclose. The supervisor cannot ask the employee point blank if he is an alcoholic. He is considered to have a disability under both federal law (the Americans with Disabilities Act) and state law (Chapter 151B). The employer must make some reasonable accommodations that will enable the employee to perform the essential functions of his or her job, such as providing a leave of absence for the employee to attend a rehabilitation program.

It is important to note, says lawyer Victoria Cohen from Menard, Murphy & Walsh ''that the employer is only required to accommodate the disability, not any associated misconduct. The employer can enforce its work rules related to alcohol use and the alcoholic employee must continue to meet the employer's performance expectations.''

If you have any questions about what you can or cannot say to this employee, do not hesitate to consult the company's legal counsel. You can also suggest to the employee that he or she should feel free to contact the representative from the company's Employee Assistance Program for additional assistance/support.

Joan Cirillo is the executive director of Operation A.B.L.E., a nonprofit that provides employment and training opportunities to adults, particularly mature workers 40 and older. She has worked for more than 20 years in education and human resources.

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