Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

© 2022 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2022 ed. | 89 Under limited circumstances, employers may also choose to place exempt employees on unpaid leave or “furlough.” To avoid running afoul of the requirement that an exempt employee receive full salary for any week in which he or she performs work, the furlough must be imposed in full- week increments. 486 If the employee performs any work at all during the furlough week—even simply checking his or her company e-mail account—the employee generally must be paid for that full week. As explained above, employers may mandate use of accrued vacation time during a furlough, rather than treating the furlough as unpaid. 487 b. Violations of the Salary Basis Test As explained above in Section VI.A.2, if an employer makes improper deductions from an employee’s predetermined salary, the employee will no longer be considered to be paid on a salary basis and will no longer be exempt. 488 In addition, plaintiff-side attorneys may argue that an employer’s practices may in certain circumstances, even as applied to a small number of exempt employees, compromise the exempt status of other employees similarly situated to that employee. 489 An employer may be found to have violated the salary basis test “if the facts demonstrate that the employer did not intend to pay employees on a salary basis.” 490 Proof of an actual practice of making improper deductions establishes that the employer did not intend to pay employees on a salary basis. 491 A decision by the federal district court in Massachusetts requires employees to identify specific practices that create a genuine issue of material fact as to the employer’s intentions. 492 In evaluating whether the employer had an actual practice of improper deductions, the regulations consider factors, including but not limited to: • The number of improper deductions, particularly as compared to the number of employee infractions warranting discipline • The time period during which the employer made improper deductions 486 See 29 C.F.R. § 541.602. 487 DOL Wage & Hour Opinion Let ter FLSA2009-2 (Jan. 14, 2009). As always, however, employers should exercise caut ion if the furlough t ime causes the employee to overdrawhis or her accrued vacat ion, as deduct ions for the overdrawn amount may increase the risk that the salary basis test could be violated should an exempt employee work during the furlough. 488 29 C.F.R. § 541.603. 489 Id. 490 29 C.F.R. § 541.603(a). Prior to the 2004DOL regulat ions, an employment policy that created “significant likelihood” of improper deduct ions could result in a loss of the exempt ion. Auer v. Robbins , 519 U.S. 452, 461, 117 S. Ct . 905 (1997) (holding that exempt status may be lost if an employer has an actual pract ice or “policy that creates a significant likelihood of [improper] deduct ions”). Some court s cont inue to use the significant likelihood test . See, e.g., Martinez v. Hilton Hotels Corp. , 930 F. Supp. 2d 508, 521-522 (S.D.N.Y. 2013). 491 29 C.F.R. § 541.603(a) 492 Crowe v. ExamWorks, Inc. , 136 F. Supp. 3d 16, 28 n.8 (D. Mass. 2015).