Company can dock next year's pay if sick leave, vacation have been used up



I am a salaried, exempt employee and have used up all my vacation and sick days for 2005. The company maintains that if I take any more time off this year, it will dock my pay in 2006. Is this legal?

You're in better straits than you realize. If you're truly exempt from federal overtime and minimum-wage laws, the company can't dock you for partial days. To do so would nullify your exemption.

But your employer can dock your salary when you take off full days. And if you have no vacation or sick time left, the company can dock your salary.

By delaying the docking until next year, the company is helping you out.

"It appears the employer here is actually doing the employee a favor by advancing sick and vacation time the employee has not yet earned," said employment lawyer Jeffrey Naness of Naness, Chaiet & Naness LLC in Jericho, N.Y.

There are some big exceptions here. One deals with time taken under the federal Family and Medical Leave Act. If you qualify for such a leave this year, despite not having any paid time off left, the company can't dock you forward for the time. But the leave, which gives qualifying employees up to 12 weeks off in one year, is unpaid.

You may have another option for preventing the future docking. Depending on how your employer's policy is written, you could argue that the company can't require you to use sick or vacation time you haven't earned, Naness said.

This wouldn't solve your problem for the remainder of 2005, but you would start 2006 with a clean slate.

Carrie Mason-Draffen writes for Newsday.

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