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SUBJECT:
Fair Labor Standards Act (FLSA) Procedures Regarding Exempt Employees |
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| 2.0 |
EFFECTIVE DATE:
April 19, 2009 |
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| 3.0 |
DISTRIBUTION:
State HR Directors |
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| 4.0 |
FROM:
George Vega, Director DATE:
April 17, 2009 |
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PURPOSE:
This Bulletin is being issued to update and replace Bulletin 09-01
following the receipt of information from the United States Department
of Labor (US DOL) regarding the status of exempt employees during
a furlough. Bulletin 09-01 is hereby revoked.
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| 6.0
| BACKGROUND:
The Division of Personnel Services (DPS) sought the advice
of the US DOL concerning the treatment of otherwise exempt employees
during a furlough situation. Based on the information received from
US DOL, an otherwise exempt employee whose work schedule and salary
are reduced due to a furlough caused by budget issues is to be treated
as a non-exempt employee for the duration of the furlough. In situations
where an otherwise exempt employee is furloughed more than once within
a particular fiscal year, the employee is to be treated as non-exempt
from the beginning of the first furlough through the end of the final
furlough for that year. |
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| 7.0 |
PROCEDURES: |
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| 7.1 |
Limitations on the Reduction of
the Salary of an Exempt Employee:
FLSA requires that exempt employees must be compensated on a “salary
basis” as promulgated by the U.S. Department of Labor. The salary
of an exempt employee cannot be reduced because of variations in the
quality or quantity of work performed. Except for those instances
described below, exempt employees must be paid their full salary for
any week in which they perform any work. No salary is to be paid in
any work week when no work is performed.
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| 7.2 |
Reductions in the Salary of
an Exempt Employee are Limited to the Following Situations:
a) Absences from work for one or more full days for personal reasons,
other than sickness or disability (i.e. when employees have no paid
leave to cover the time off, and the reason for the absence is for
personal reasons, not sickness or disability, the reduction must
be in full-day increments);
b) Absences from work for one or more full days due to sickness
or disability if deductions are made under the sick leave plan which
provides wage replacement (i.e. if an employee does not have enough
sick leave to cover a full day’s absence, the employer cannot
deduct for a half-day of leave without pay);
c) To offset any amounts received as payments for jury fees, witness
fees, or military pay;
d) Penalties imposed in good faith for violating safety rules of
“major significance”;
e) Unpaid disciplinary suspension of one or more full days imposed
in good faith for violations of workplace conduct rules; or
f) Proportionate part of an employee’s full salary may be
paid for time actually worked in the first and last weeks of employment.
None of these exceptions affect the requirement that employees use
sick leave, shared leave, vacation leave and holiday compensatory
time in half or full-day increments and leave without pay in full
day increments.
If an agency believes that it has a special circumstance for any
other exception, the agency must clear the exception with DPS before
acting on it.
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| 7.3 |
Managing Complaints:
Each agency must provide all current exempt employees and any new
employee hired into an exempt position with the information set forth
in subsections 7.1 and 7.2 above and information about their right
to file a complaint regarding deductions they believe are improper.
Agencies should notify the Division of Personnel Services (DPS) of
any complaints that are resolved at the agency level. Complaints that
cannot be resolved at the agency level should be forwarded to DPS.
Complaints regarding this issue are being administered by DPS for
a number of reasons. The first is that historically, DOL has treated
the State of Kansas as one employer for the purposes of FLSA and because
of that, DPS has been the point of contact with DOL. Given the potential
for DOL assistance in determinations regarding salary reductions of
exempt employees it would be best if we maintained the single point
of contact.
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| 7.4 |
Reimbursement for Improper Reductions:
Agencies must reimburse employees for deductions that are found to
be improper.
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| 7.5 |
Good Faith Effort to Prevent Improper
Deductions:
After any determination that improper deductions were made, the agency
must take, and document, good faith action to ensure that such deductions
do not occur again.
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REFERENCES:
K.A.R. 1-5-24, K.A.R. 1-9-1, 29 C.F.R. Part
541
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| 9.0 |
CONTACT PERSON: Ken
Otte at ken.otte@da.ks.gov or at (785) 296-4383. |
