Today’s FLSA Question: Does the FLSA require employers to pay employees while they are on military leave?
Answer: Good question. The answer is maybe . . . and it depends. . . We need a little more information to answer this one.
As a general rule, the FLSA does not require that employers continue to pay employees while they’re on military leave. However, the FLSA forbids employers from docking the pay of certain overtime-exempt salaried employees for most short-term absences, including military leave. Let’s look at both exempt and non-exempt employees and see how the FLSA affects their status while on military leave.
Military Leave and Hourly Employees
The FLSA does not require employers to pay non-exempt hourly employees while they are away on military leave. The FLSA only requires that these hourly employees be paid while they are actually working for the employer. For example, say a non-exempt hourly employee takes two full days and one half day out of work this week as military leave. There is no FLSA requirement for the employer to pay for any of this time. (The employer may choose to pay for the time, or allow the employee to utilize accrued paid time off. But, the employer is not mandated by the FLSA to pay for this time.)
Military Leave and Overtime-Exempt Salaried Employees
However, most overtime-exempt salaried employees play by a different set of rules. Overtime-exempt salaried employees cannot have their pay docked for military leave absences of less than one week. For example, if an exempt employee takes two full days and one half day out of work this week as military leave, the employer cannot maintain the employee’s exempt status and dock the employees pay for the two and one-half days. In order to dock the pay of an overtime-exempt salaried employee for military leave absences, they must miss an entire workweek.
In sum, for most employees the compensability of military leave is not an FLSA issue. In fact, the FLSA itself does not directly address the compensability of military leave. However, employers are required to follow strict salary requirements in order to avoid paying any overtime to certain exempt salaried employees. If the employer wants to classify an employee as an overtime-exempt salaried worker, they may be required to pay for an employee’s military leave hours as a result.
State laws can also affect an employee’s status while on military leave. Many states have enhanced wage and hour protections for military personnel. It would be wise to thoroughly investigate local laws and regulations in order to make an ultimate determination on how to handle military leave requests.