Exempt employee working 3 hours per day and workers’ comp
Posted: 03 April 2008 04:01 PM   [ Ignore ]
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Let’s say you have an exempt employee who got injured on the job.  To get her back to work you put her on light duty for 2 or 3 hours per day.  She will be receiving workers’ comp for the time she cannot work.  Because she is exempt is she entitled to a full day’s pay if she only works 2 or 3 hours a day on light duty until she can return to full days?

[ Edited: 03 April 2008 04:16 PM by Patrick Della Valle ]
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Posted: 04 April 2008 09:46 AM   [ Ignore ]   [ # 1 ]
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Generally, the FLSA salary basis test requires paying an employee a predetermined amount for every week in which any work is performed, regardless of the quantity.  An employer may make deductions from pay for absences of one or more full days if salary replacement benefits are provided under a State disability insurance law or under a State workers’ compensation law.  29 C.F.R. 541.602.

That said, I think the DOL’s Feild Operations Manual allows an employer to may make a bona fide reduction in an employee’s salary because of a “reduction in the normal scheduled workweek” so long as the reduction “is not designed to circumvent the salary basis requirement.”  ยง22b00 of the FOH (pdf). and FLSA2004-5. Alternatively, based on those sources, you could possibly convert the employee to non-exempt for the light duy period.

This seems to be a tricky issue, and State law might provide for a different outcome.  I would certainly consult with counsel to get a definitive answer to this one.

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Patrick Della Valle
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Posted: 04 April 2008 03:28 PM   [ Ignore ]   [ # 2 ]
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You can ‘dock’ and exempt person if FMLA comes into play.  If you aren’t and the person is eligible for FMLA, you need to run the two issues concurrently.  Otherwise, if you are paying the injured person their pre-injury wage, your workers’ comp carrier SHOULD NOT be paying them anything.

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