The Department of Labor tackled that question in a recent Opinion Letter. A company asked about this scenario:

A group of store managers were selected to be trained for a possible promotion to district manager positions. Both store manager and area manager are exempt jobs.

But during most of the seven-week training course, the employees performed mostly nonexempt work while they shadowed an existing area manager. The amount of hands-on management (i.e., exempt work) they performed increased as the training progressed.

So the company asked the DOL: Do those employees lose their exempt status during training?

The answer: No.

The Opinion Letter noted that the executive exemption doesn’t apply to nonexempt employees who are training for, but haven’t yet assumed, an exempt position. In other words, a nonexempt employee training to be a manager wouldn’t become exempt during the training.

But in this case, the employees are already exempt. And, the DOL said, attending training doesn’t change the store managers’ primary duty. They’re still employed as store managers, which is an exempt position in this case.

Read the Opinion Letter from the DOL here.

To remain exempt, employees must be paid on a “salary basis” — they get the same amount of money every week, in most cases, no matter how many hours they work.

You can deduct from workers’ salaries in whole-day increments when an employee chooses to be absent for personal reasons. So if your office is open, but an employee can’t make it due to the weather, you can deduct from his PTO bank or from his weekly salary.

But what about when the weather’s so bad, you shut down the office for a day or longer?

If it’s anything less than a week, you have to pay exempt employees their full salaries, according to an Opinion Letter from the Department of Labor.

You still have the option of making employees use vacation time to cover the work they’re missing. But when employees have no accrued PTO, they’re still owed a full week’s salary.

Half days

You can also deduct PTO when an employee misses a partial day — by choice or because of a workplace closing.

But again — even when an employee takes a half-day by choice, you can only deduct from his salary in full-day increments. So even if he has no PTO, he still gets paid for the whole day if he does any work at all.

The DOL recently issued an Opinion Letter in response to a question about whether a group of employees’ on-call time was considered hours worked under the FLSA. The employees in this example must:

• be reachable at all times
• abstain from alcohol, and
• get to work within an hour of being contacted.

The employees don’t need to stay on the employers’ premises and are called only on rare occasions.

The DOL’s answer: The on-call time doesn’t have to be paid. Why not?

The key question is whether the employees can still use the time for personal reasons. Personal use of the time might be limited if employees have to stay in one place, need to get to work very quickly after they’re called, or if they’re contacted frequently.

In those cases, the time would need to be paid.

But in this example, an hour is a reasonable response time — employees can go where they want, and the prohibition on alcohol isn’t restrictive enough to put broad limits on how employees use the time.

You can read the entire letter here.

Here’s what’s new:

• Medical certification forms, now separated for employees’ health conditions and family members’ health conditions
• A new notice of eligibility, rights and responsibilities
• A new notice for FMLA leave designation
• New forms for military leave provisions — a certification for qualifying exigency and a certification for injury or illness of a covered servicemember.

With non-exempt employees, the answer is simple: If they miss work, either because the office is closed or because they personally can’t make it in, you aren’t required to pay them. They’re only paid for the hours they actually work.

But with exempt employees paid on a salary basis, things get trickier. Under certain circumstances, you can make whole-day deductions from the weekly salary. Here’s some guidance, courtesy of a Department of Labor (DOL) Opinion Letter:

When you’re closed

When the office is closed for less than a full week, you need to pay exempt employees for the whole week, whether you’re closed for one day or four. In general, according to the Fair Labor Standards Act (FLSA), when exempt employees are “ready, able, and willing to work,” their weekly salaries can’t be reduced when the workplace is closed.

However, you can deduct from the vacation bank for any days people miss due to the closings. But if someone has no accrued paid time off, he or she must be paid anyway.

When you’re open

In other cases, the office may be open, but the weather prevents some exempt employees from coming in. When that happens, you don’t need to pay them. Essentially, the employee chooses not to come in, and that’s considered an absence “for personal reasons,” which you can deduct for.

But what about when people come in late or leave early because of the weather? If exempt employees do any work at any time during the day, you need to pay for the full day (but again, you can deduct from vacation banks for any hours missed, if you want).

Read more in the DOL’s Opinion Letter here.

New FMLA regs are in the final stages of becoming official and could go into effect by the end of the month. The good news: Many of the changes will actually help HR.

The Department of Labor released the rule changes in February and accepted comments from the public until April.

On October 20, the DOL sent the regs to the Office of Management and Budget (OMB) for final approval. If the OMB approves, the regs could be added to the Federal Register by the end of the month.

What can HR expect? Here are six substantial changes the DOL proposed in February:

1. Notice from employees — The law is vague about when employers are put on notice that an employee needs FMLA. Right now, all that’s clear is that employees don’t need to specifically mention FMLA. The proposed regs give some clarification: Employees’ notices must indicate they’re unable to work and they plan to visit a healthcare provider, and they must provide an estimated duration of the absence.
2. Notice to employees — Right now, employers have to tell employees that time off will be counted as FMLA within two days of learning about the qualifying condition. Under the new regs, employers would have five days.
3. Definition of “serious health condition” — To qualify for FMLA, an employee or family member must be incapacitated for more than three consecutive days and make at least two visits to a healthcare provider (or one visit plus continuing treatment). The proposed regs require those two visits to occur within 30 days of when the period of incapacity starts. Also, to get leave for a chronic condition, the employee or family member must make at least two doctor visits annually.
4. Eligibility standards — Employees are eligible for leave if they’ve worked for the company for at least 12 months — even if the 12 months weren’t consecutive. The current rules don’t say how long employees can go back to add up periods of service. Under the proposed regs, employers won’t need to count any time that occurred before a break in service of more than five years.
   
5. Contact with healthcare providers — Right now, employers are forbidden from directly contacting an employee’s doctor. But under the proposed regs, companies may do so in order to clarify an insufficient certification (after giving the employee a chance to correct the problem).
6. Release of claims — Employees can’t waive their right to sue for an FMLA violation. The courts haven’t agreed on whether that only refers to future FMLA claims, or if it also includes retroactive waivers, such as those found in severance agreements. Under the DOL’s proposal, the latter type of waiver will be allowed.

We’ll keep you posted on the changes when the regs become official.

The Department of Labor fielded that question in a recent Opinion Letter.

The issue of whether or not on-call time needs to be paid is case-specific, but the DOL discussed the factors that are considered:

• Response time — For the time to be classified as unpaid, employees must be allowed enough time to respond that they can still take on personal activities while they wait. In the specific example addressed in the Opinion Letter, employees had to answer calls within eight minutes — that’s probably not enough time, according to the DOL.
• Frequency — There’s no easy answer regarding how often employees can be called before they need to be paid. Generally, if employees can expect to be called at least once per shift, the time’s compensable.
• Location — If employees can go anywhere they want, their time probably isn’t compensable. If they have to stay within a certain radius of the workplace, depending on how frequently they’re called and how long they have to respond, their on-call time might be paid.

Read the DOL’s Opinion Letter here.

As the Department of Labor (DOL) mentioned in a recent opinion letter, part-time workers have to pass the same salary test for exemption as full-time employees. That means they have to make at least $455 a week, no matter how much they work. There’s no provision in the Fair Labor Standards Act (FLSA) to let companies prorate that amount to fit a work week that’s less than 40 hours.

Take this scenario the DOL describes: An employee works full-time making $30,000 a year. Then, that employee starts working just 20 hours a week, and gets paid $15,000 (or, roughly $288/week). That puts him or her below $455 a week, so the employee is no longer exempt. (Of course, if the new part-time salary was still high enough, he or she would stay exempt.)

Note: The opinion letter also points out that employers are allowed to pay part-timers on a salary basis, as long as they make sure the weekly salary divided by the actual number of hours worked comes out to at least the minimum wage.

Read the letter here.