hourglass-small copy.jpgThis blog post was authored by Emily Muscatell

Deciding how much to pay an exempt employee who is absent can be tricky.  If an exempt employee has accrued leave, the employer may require the employee to use his or her accrued leave, regardless of whether the employee is out for personal or medical reasons.  But what if an exempt employee has exhausted all of his or her accrued leave?  Since exempt employees must be paid on a “salary basis,” meaning they must be paid a predetermined amount each pay period, regardless of the hours worked,  can the employer dock the employee’s pay without affecting the employee’s exempt status?  The answer to this question is yes, but only in certain situations. 


Time Taken Off

Employer Restrictions on Salary Deductions

for Exempt Employees

Partial Day

A private employer may not make a deduction in an employee’s pay if the employee does not have accrued leave.[1]  Although private employers may not dock an employee’s pay, public sector employers can make partial day reductions in pay.  A public employer may make deductions from an employee’s pay for partial day absences if: all accrued leave has been exhausted; permission to use leave was not requested or was denied; or the employee chooses to use leave without pay.[2]

With partial day absences for public employers, we recommend that if your agency wants to make such deductions it does so consistently agency-wide.  The Department of Labor regulation permitting such deductions provides that they are permitted as long as the agency has set up a pay system established pursuant to principles of public accountability.  Without agency-wide consistency regarding partial day docking, it will be difficult to argue that such a pay system has been properly set up.[3] 

One or More Days

Personal Reasons: An employer may make deductions from an employee’s pay if the employee is absent due to personal reasons, other than illness or disability.[4] 

Illness or Disability: An employer may deduct pay if the employee takes one or more days off due to illness or disability (including work-related injuries), so long as the employer maintains a plan, policy, or practice of offering paid leave for illness or disability.[5]  

Disciplinary Suspension: If an exempt employee is absent for one or more full days due to a disciplinary suspension for violation of a workplace conduct rule, an employer may make reductions in the employee’s pay.[6]  If the discipline is for performance, the suspension must be in a workweek increment. 

Jury duty, Serving as a Witness, or Temporary Military Leave: An employer may not make deductions to an employee’s pay for jury duty, serving as a witness, or temporary military leave if the absence is less than a full workweek.  The employer may, however, “offset any amounts received by an employee as jury fees, witness fees or military pay for a particular week against the salary due for that particular week.”[7]

One or More Weeks

No Work Performed: If the employee does not perform any work during the workweek, an employer may dock the employee’s pay.  However, if the employee is ready, willing and able to work, but no work exists, the employer may not dock the employee’s pay.[8]

Some Work Performed:

If an employee performs some form of work during the week, regardless of the time spent or the quality of the work, an employer may not make any pay deductions, if the employee is ready, willing and able to work for the entire week.[9]  This means that if the employee takes one phone call or sends one email during the week, the employee may be entitled to a full week’s salary. 


If an employer makes an improper deduction from an exempt employee’s pay, an employer may be required to reimburse the employee, or the employee may lose his or her exempt status.[10]  As such, we encourage agencies to carefully evaluate each absence on a case-by-case basis in order to determine the appropriate action.


[1] Conley v. Pacific Gas & Electric Co. (2005) 131 Cal.App.4th 260, 267.

[2] 29 C.F.R. § 541.710(a).

[3] 29 C.F.R. § 541.710(a).

[4] 29 C.F.R. § 541.602(b)(1).

[5] 29 C.F.R. § 541.602(b)(2).

[6] 29 C.F.R. § 541.602(b)(5).

[7] 29 C.F.R. § 541.602(b)(3).

[8] 29 C.F.R. § 541.602(a). 

[9] 29 C.F.R. § 541.602(a). 

[10] 29 C.F.R. § 541.603.