Employer Cannot Deduct Pay

Originally published by Thomas J. Crane.

Some employers try to avoid the overtime requirements of the Fair Labor Standards Act by claiming an hourly employee is a manager or simply that the employee is paid on a salary basis. In Kim v. Umami Grill & Sushi, LLC, No. H-18-850, 2019 U.S. List. LEXIS 31054 (S.D. Tex. 2/27/2019), the employer moved moved for summary judgment saying the plaintiff was a chef, and, therefore, an executive or professional who was paid on a salary basis. Umami also claimed the chef was management.

Kim, however, points out that according to several pay stubs, he was often paid significantly below his alleged salary amount. The employer was deducting pay for days which the chef missed for illness. The court noted the deductions. The judge said that deductions for a half day are permitted for absences. But, the employer was deducting full days when the chef was absent. There are exceptions under the FLSA for situations in which full day deductions are permitted, but the employer offered no such explanation. So, the court said there were genuine issues of material fact and summary judgment, was not, therefore, appropriate. See the decision here.

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