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I have a question regarding sick/vacation time for salary employees in New Hampshire, USA.

If a salary worker in NH works over 40h in a week, they are not paid overtime.

However, I am seeing a company automatically (without permission) subtract sick/vacation time to make up for any pay periods under 40 hours.

If an employee at this company works 42h one week, they are paid for 40. If an employee at this company works 38h one week, they are paid for 40 but lose 2h of sick or vacation time.

Is this fair? Is this legal?

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  • Does the employee handbook state anything about this?
    – mikeazo
    Dec 9, 2019 at 18:29
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    How is this company tracking hours worked?
    – sf02
    Dec 9, 2019 at 18:43
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    I have just consulted the handbook. All it says is that salary employee pay will not be reduced for "partial day absences for personal reasons, sickness, or disability." Hours are tracked digitally and can be viewed via an online portal.
    – zelon88
    Dec 9, 2019 at 18:54
  • Since you are not paid overtime it sounds like the position is considered exempted. The only question is if you are paid hourly or have a salary. Please update your question to indicate if that's the case.
    – Donald
    Dec 9, 2019 at 22:14
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    Have you asked HR about this yet? It could be a misconfiguration of their time reporting software that's treating salaried (exempt) employees the same way they would hourly.
    – disappointed in SO leadership
    Dec 10, 2019 at 16:39

2 Answers 2

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WARNING: Based on Sleske comment, I jumped to a conclusion that I most likely shouldn't have in my original answer, so I've modified my answer to take into account the new information he provided.

From your own employee handbook, it says:

that salary employee pay will not be reduced for "partial day absences for personal reasons, sickness, or disability."

In other words, your employee handbook says "employee pay", not PTO. That distinction is important because that distinction was made in a California court case where the employer won on the same issue.

The court reasoned that requiring an exempt employee to use accrued PTO leave does not result in any deduction made from the employee’s salary...

Also

In General Atomics, the appellate court found that deductions for any duration are legal. [...]

The General Atomics case opens the door for partial-day deductions of any length. But just because you can, should you? Robert A. Jones, a shareholder in the San Francisco office of Ogletree Deakins, observes: “Many employers believe that requiring partial-day deductions from PTO is generally inconsistent with the level of responsibility and authority of their exempt employees and may have a negative effect on employee relations and moral.”

https://ogletree.com/insights/2014-07-30/court-endorses-pto-use-for-exempt-employee-partial-day-absences/

Granted, California is not New Hampshire, and personally, I feel that court decision in California was goddamn awful, but if that distinction holds true in California, that same distinction could hold true in New Hampshire as well.

That being said, you should still contact the New Hampshire Department of Labor to ask for their opinion. Dealing with wage theft/vacation theft is their job. And hopefully, one can hope that New Hampshire is doing things differently than in California.

https://www.nh.gov/labor/contact-us/index.htm

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    It's a complex situation, but this is probably wrong. As pointed out in user112650's answer, the crucial difference is that salary deductions are not (usually) allowed for salaried workers, but PTO deductions are allowed. See e.g. this article: Court Endorses PTO Use for Exempt Employee Partial-Day Absences.
    – sleske
    Dec 11, 2019 at 8:47
  • @sleske, Thanks for your very insightful comment. I've corrected my answer accordingly.
    – Stephan Branczyk
    Dec 11, 2019 at 11:46
  • @sleske, Honestly, I'm not a lawyer, but I think the appellate court in California was too literal in its decision in the General Atomics case. If they ruled that way, they should have also ruled that extra PTO could be generated by working overtime on some other weeks. At least, that's what common sense would dictate.
    – Stephan Branczyk
    Dec 11, 2019 at 12:05
  • The thing is, by ruling that both under-worked and over-worked weeks should reflect as adjustments to PTO, you've effectively made the person non-exempt.
    – dwizum
    Dec 11, 2019 at 15:42
  • @dwizum, Not really. To my own limited knowledge, a non-exempt employee doesn't have that flexibility. You'd have to pay him/her overtime at 1.5 times the salary at the very least when that worker works overtime, but when that employee works less than 40 hours, you're only able to deduct his hourly rate at 1 time his hourly rate.
    – Stephan Branczyk
    Dec 11, 2019 at 18:37
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What does the Handbook say about PTO usage (not salary/pay reduction)?

Seems as though some of the responses are confusing deducting PTO with reducing salary.

If you're exempt, as long as they're not reducing your pay, they can use/deduct your PTO hours.

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