For the purpose of these regulations, the following terms
will be construed as follows:
A.
"Administrative": In order for an individual to be considered a bona fide
administrative worker, the employee's primary duty must consist of either (1)
the performance of office or nonmanual work directly related to management
policies or general business operations of the employer or the employer's
customers, or (2) the performance of functions in the administration of a
school system, or educational establishment or institution, or of a department
or subdivision thereof, in work directly related to the academic instruction or
training carried on therein, and (3) where the performance of such primary duty
customarily and regularly includes the exercise of discretion and independent
judgment.
B. "Bona fide" means
authentic or genuine.
C.
"Executive": In order for an individual to be considered a bona fide executive,
the employee's primary duty must consist of the management of the enterprise in
which employed or of a customarily recognized department or subdivision thereof
and includes the customary and regular direction of the work of two or more
other full-time (or equivalent) employees therein.
D. "Primary Duty" means, as a general rule,
the activities in which an employee spends the major part, or over 50 percent
of his or her time. A determination of whether an employee has exempting
activities as his or her primary duty must be based on all the facts in a
particular case. The amount of time spent in the performance of those duties is
a useful guide in determining the primary duty of an employee. [As an example,
an employee who spends over 50 percent of his or her time in management would
have management as his or her primary duty.] Time alone, however, is not the
sole test. Some other pertinent factors are the relative importance of the
exempting duties as compared with other types of duties, the frequency with
which the employee exercises discretionary powers, the relative freedom from
supervision, and the relationship between the employee's salary and the wages
paid other employees for the kind of nonexempt work performed.
E. "Professional" In order for an individual
to be considered a bona fide professional, the employee's primary duty must
consist of the performance of work (1) requiring knowledge of an advanced type
in a field of science or learning, or (2) work as a teacher in the activity of
imparting knowledge, or (3) requiring invention, imagination, or talent in a
recognized field of artistic endeavor, where the performance of such primary
duty customarily and regularly includes the exercise of discretion and
independent judgment.
F. "Salaried
employee" means an employee who receives a predetermined fixed amount of wages
that is no less than the amount required by 26 MRSA Sec.663(K) which is paid on
a weekly or less frequent basis. Commissions or bonuses may not be used in
determining the individual's predetermined amount of wages. Subject to the
following exceptions, a salaried employee must receive his or her full salary
for any week in which the employee performs any work without regard to the
number of days or hours worked. The prohibition against deductions from pay for
a salaried employee is subject to the following exceptions:
1. Deductions from pay may be made when a
salaried employee is absent from work for one or more full days for personal
reasons, other than sickness or disability. [Example: if an employee is absent
for two full days to handle personal affairs, the employee's salaried status
will not be affected if deductions are made from the salary for two full-day
absences. However, if an exempt employee is absent for one and a half days for
personal reasons, the employer can deduct only for the one full-day
absence.]
2. Deductions from pay
may be made for absences of one or more full days occasioned by sickness or
disability (including work-related accidents) if the deduction is made in
accordance with a bona fide plan, policy or practice of providing compensation
for loss of salary occasioned by such sickness or disability. The employer is
not required to pay any portion of the employee's salary for full-day absences
for which the employee receives compensation under the plan, policy or
practice. Deductions for such full-day absences also may be made before the
employee has qualified under the plan, policy or practice, and after the
employee has exhausted the leave allowance thereunder. [Example: if an employer
maintains a short-term disability insurance plan providing salary replacement
for 12 weeks starting on the fourth day of absence, the employer may make
deductions from pay for the three days of absence before the employee qualifies
for benefits under the plan; for the twelve weeks in which the employee
receives salary replacement benefits under the plan; and for absences after the
employee has exhausted the 12 weeks of salary replacement benefits. Similarly,
an employer may make deductions from pay for absences of one or more full days
if salary replacement benefits are provided in accordance with State workers'
compensation law.]
3. An employer
may not make deductions from pay for absences of a salaried employee occasioned
by jury duty, attendance as a witness or temporary military leave. However, the
employer may offset any amounts received by an employee as jury fees, witness
fees or military pay for a particular week against the salary due for that
particular week without loss of the exemption.
4. Deductions from pay of salaried employees
may be made for penalties imposed in good faith for infractions of safety rules
of major significance. Safety rules of major significance include those
relating to the prevention of serious danger in the workplace or to other
employees, such as rules prohibiting smoking in explosive plants, oil
refineries and coal mines.
5.
Deductions from pay of salaried employees may be made for unpaid disciplinary
suspensions of one or more full days imposed in good faith for infractions of
workplace conduct rules. Such suspensions must be imposed pursuant to a written
policy applicable to all employees. [Example: an employer may suspend a
salaried employee without pay for three days for violating a generally
applicable written policy prohibiting sexual harassment. Similarly, an employer
may suspend a salaried employee without pay for twelve days for violating a
generally applicable written policy prohibiting workplace violence.]
6. An employer is not required to pay the
full salary in the initial or terminal week of employment. Rather, an employer
may pay a proportionate part of an employee's full salary for the time actually
worked in the first and last week of employment. In such weeks, the payment of
an hourly or daily equivalent of the employee's full salary for the time
actually worked will meet the requirement. Employees are not paid on a salary
basis within the meaning of these regulations if they are employed occasionally
for a few days, and the employer pays them a proportionate part of the weekly
salary when so employed.
7. An
employer is not required to pay the full salary for weeks in which a salaried
employee takes unpaid leave under the Family and Medical Leave Act. Rather,
when an exempt employee takes unpaid leave under the Family and Medical Leave
Act, an employer may pay a proportionate part of the full salary for time
actually worked. [Example: if an employee who normally works 40 hours per week
uses four hours of unpaid leave under the Family and Medical Leave Act, the
employer could deduct 10 percent of the employee's normal salary that
week.]
8. When calculating the
amount of a deduction from pay allowed under paragraph (1)-(7) above, 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. A deduction from pay as a penalty for violations of major safety
rules under paragraph (4) may be made in any amount.
A salaried employee will be considered to be paid on a
"salary basis." Additional compensation besides the salary (minimum guarantee
plus extras) is not inconsistent with the salary basis of payment. Such
arrangements are subject to the exceptions in paragraphs 1 through 8
above.
