D.C. Mun. Regs. tit. 4 § 1608

Current through Register Vol. 71, No. 20, May 17, 2024

Rule 4-1608 - INTERACTION WITH THE FAIR LABOR STANDARDS ACT

1608.1

The provision by an employer of unpaid DCFMLA leave to an employee who is exempt from minimum wage and overtime requirements of FLSA based on his or her status as a salaried executive, administrative, professional, or computer employee (see29 CFR part 541 ) shall not cause the employee to lose the FLSA exemption.

1608.2

If an employer provides unpaid DCFMLA leave to an employee who is considered an exempt employee under 29 CFR part 541, the employer may deduct pay from the employee's salary for any hours taken as DCFMLA leave within a workweek without affecting the exempt status of the employee.

1608.3

When an exempt employee takes unpaid DCFMLA leave, an employer may deduct a proportionate part of the full salary for the time for which DCFMLA leave is taken. For example, if an exempt employee who normally works forty (40) hours per week uses four (4) hours of DCFMLA leave, the employer could deduct ten percent (10%) of the employee's normal salary that week.

1608.4

When calculating the amount of pay allowed to be deducted under § 1608.2, the employer may use the hourly or daily equivalent of the employee's full weekly salary or any other amount proportional to the time actually missed by the employee.

1608.5

For an employee paid in accordance with the fluctuating workweek method of payment for overtime (see29 CFR § 778.114 ), the employer, during the period in which intermittent or reduced schedule DCFMLA leave is taken, may compensate an employee on an hourly basis and pay only for the hours the employee works, including time and one-half the employee's regular rate for overtime hours.

1608.6

The change to payment on an hourly basis shall include the entire period during which the employee is taking intermittent leave, including weeks in which no leave is taken.

1608.7

The hourly rate shall be determined by dividing the employee's weekly salary by the employee's normal or average schedule of hours worked during weeks in which DCFMLA leave is not being taken.

1608.8

If an employer chooses to follow this exception from the fluctuating workweek method of payment, the employer must do so uniformly with respect to all employees paid on a fluctuating workweek basis who take DCFMLA leave.

1608.9

If an employer does not elect to convert the employee's compensation to hourly pay, no deduction may be taken for DCFMLA leave absences.

1608.10

Once the need for intermittent or reduced scheduled leave is over, the employee may be restored to payment on a fluctuating workweek basis.

D.C. Mun. Regs. Tit. 4, § 1608

Final Rulemaking published at 38 DCR 4350, 4358 (July 12, 1991); as amended by Notice of Final Rulemaking published at 10788, 10798 (November 19, 2010)

The Notice of Final Rulemaking published at 57 DCR 10789 (November 19, 2010) amends Chapter 16 of Title 4 by renaming it, "District of Columbia Family and Medical Leave Act." The Notice of Final Rulemaking also amends the existing the sections within Chapter 16, including renaming some of the sections. 4 DCMR § 1608 is formerly entitled, "Reasonable Notice to Be Provided to Employer."

Authority: The Director of the Office of Human Rights, pursuant to section 301(c) of the Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2-38; D.C. Official Code § 2-1403.01(c) ), and Mayor's Order 2009-45, dated March 31, 2009.