January 14, 2009
This is in response to your request for an opinion regarding whether your
client may require exempt employees to use accrued vacation time during a
plant shutdown of less than a workweek without violating the salary basis
test and thereby affecting their exempt status under section 13(a)(1) of the
Fair Labor Standards Act (FLSA).* As described below,
it is our opinion that the FLSA permits such practices.
It is the Wage and Hour Division’s position that:
[s]ince employers are not required under
the FLSA to provide any vacation time to employees, there is no prohibition
on an employer giving vacation time and later requiring that such vacation
time be taken on a specific day(s). Therefore, a private employer may
direct exempt staff to take vacation or debit their leave bank account
. . . , whether for a full or partial day’s absence, provided
the employees receive in payment an amount equal to their guaranteed salary.
Wage and Hour Opinion Letter
(Oct. 24, 2005); see also 29
C.F.R. §§ 541.600, 541.602(a);
69 Fed. Reg. 22,122, 22,178 (Apr. 23,
2004) (“[E]mployers, without affecting
their employees’ exempt status, may take deductions from accrued leave accounts.”).
Therefore, it is our opinion that the employer may require exempt employees
to use accrued vacation time for any absence, including one resulting from
a plant shutdown, without affecting their exempt status, provided that employees
receive a payment in an amount equal to their guaranteed salary. “[A]n exempt
employee who has no accrued [vacation] benefits . . . or has a negative balance
. . . still must receive the employee’s guaranteed salary for any absence(s)
occasioned by the employer or the operating requirements of the business.”
Wage and Hour Opinion Letter FLSA2005-41.
This opinion is based exclusively on the facts and circumstances described
in your request and is given based on your representation, express or implied,
that you have provided a full and fair description of all the facts and circumstances
that would be pertinent to our consideration of the question presented. Existence
of any other factual or historical background not contained in your letter
might require a conclusion different from the one expressed herein. You have
represented that this opinion is not sought by a party to pending private
litigation concerning the issues addressed herein. You have also represented
that this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department
We trust that this letter is responsive to your inquiry.
Alexander J. Passantino
* Note: The actual name(s)
was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7).
Unless otherwise noted, any statutes, regulations, opinion letters, or
other interpretive material cited in this letter can be found at www.wagehour.dol.gov.