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Orlando,
Florida Overtime Lawyer / Attorney
My employer has
made deductions from my salary for disciplinary
reasons. Is this legal?
(Back to Questions)
Deductions made from the salary of an employee
based upon quality or quantity of work can cause
the employer to lose the exemption from paying
overtime.
An employee is considered paid on a salary basis
if under his employment agreement he regularly
receives each pay period on a weekly basis a
predetermined amount constituting his
compensation which is not subject to reductions
because of variations in the quality or quantity
of the work performed. Title 29, Code of Federal
Regulations, Section 541.118(a). Being paid a
regular salary is an essential requirement for
the employer to qualify for an exemption from
overtime. In other words, if you are not being
paid a regular salary that is not subject to
reductions because of variations in the quality
or quantity of the work performed, you are not
exempt from being paid overtime regardless of
your job title, duties and responsibilities.
Where a deduction not permitted is inadvertent,
the exemption will not be lost if the employer
reimburses the employee for such deductions and
promises to comply in the future.
An employee will not be considered to be "on a
salary basis" if deductions from his
predetermined compensation are made for absences
occasioned by the employer or by the operating
requirements of the business. Accordingly, if
the employee is ready, willing, and able to
work, deductions may not be made for time when
work is not available.
Deductions may not be made for absences of an
employee caused by jury duty, attendance as a
witness, or temporary military leave. The
employer may, however, offset any amounts
received by an employee as jury or witness fees
or military pay for a particular week against
the salary due for that particular week without
loss of the exemption.
The effect of making a deduction that is not
permitted will depend upon the facts in the
particular case. Where Deductions are generally
made when there is no work available, it
indicates that there was no intention to pay the
employee on a salary basis. In such a case the
exemption would not be applicable to him during
the entire period when such deductions were
being made. On the other hand, where a deduction
not permitted is inadvertent, or is made for
reasons other than lack of work, the exemption
will not be considered to have been lost if the
employer reimburses the employee for such
deductions and promises to comply in the future.
Failure to pay the full salary in the initial or
terminal week of employment is not considered
inconsistent with the salary basis of payment.
In such weeks the payment of a proportionate
part of the employee's salary for the time
actually worked will meet the requirement.
However, this should not be construed to mean
that an employee is on a salary basis within the
meaning of the regulations if he is employed
occasionally for a few days and is paid a
proportionate part of the weekly salary when so
employed. Moreover, even payment of the full
weekly salary under such circumstances would not
meet the requirement, since casual or occasional
employment for a few days at a time is
inconsistent with employment on a salary basis
within the meaning of the regulations.
(Back to Questions)
For a confidential
consultation regarding potential employment
dispute cases, contact the Law Office of N. James
Turner, Esq., P.A. at
(407) 422-6464 or email
us by utilizing our confidential
submission form.
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