Q: We recently hired a temporary employee for a position that is classified as exempt under the Fair Labor Standards Act (FLSA). With the holidays quickly approaching, will we be required to pay the temporary employee for the holidays observed by our company?
A: The FLSA doesn’t require payment for time that isn’t worked, such as vacations or holidays (federal or otherwise). Those benefits are generally a matter of agreement between the employer and the employee (or the employee’s representative). However, the answer may not be as simple with regard to exempt employees.
Under the FLSA, exempt employees must not only satisfy a “duties” test but must also be paid on a “salary basis.” To qualify as an employee paid on a salary basis, an employee must regularly be paid a predetermined fixed amount (currently, at least $455 per week) that isn’t subject to reduction based on the quality or quantity of work performed during the pay period. You should note that many states have an even higher minimum threshold.
With certain limited exceptions, exempt employees must receive their full salary in holiday weeks in which they work.
Craig Olivio is an attorney with Bond Schoeneck and King in the firm’s Garden City, New York, office and a member of the Employers Counsel Network. Currently, he serves as labor counsel to the many of the firm’s public sector clients in Westchester County and on Long Island. He may be contacted at firstname.lastname@example.org
2 thoughts on “The FLSA and holiday pay for temporary employees”
Completely aside from the FLSA issue, why would you want to “cheap out” as one of you first interactions with a new empolyee. She or he was good enough to be hired, so should be treated equally with existing employees when there is no existing policy to the contrary. If your company has just hired a new CEO, I doubt this issue would be being raised at all.
This is because temporary workers are second class citizens. Not only is it terrible to be a low paid temporary worker but it also stinks to be a high paid one. In many instances you boss sees you as more of a burden then full time staff because they have to sign your timesheet. It isn’t their money but its something in human nature. Temps are hated! This should really be reviewed closely.