Ask the Experts: FMLA Leave, OT Pay & Complaints

On Mar 9, 2026

In the latest installment of New Jersey Business Magazine’s Ask the Experts column, HR professionals working with the New Jersey Business & Industry Association respond to executives’ inquiries on three interesting workplace issues:

Can we deduct from an exempt employee’s salary when they’re on intermittent FMLA leave?

Yes. If no paid leave laws apply and you don’t offer any paid time off, you can deduct from an exempt employee’s salary for leave designated as Family and Medical Leave Act (FMLA), even if that leave is taken intermittently. FMLA leave is one of the instances in which you’re not required to pay an exempt employee’s full salary for the week even if some work was done.

However, if an employee has paid time off available, they can choose to use that to cover some, or all, of their FMLA leave. You can also require the employee to use available paid time off for their absence as long as they’re not also receiving a wage replacement benefit, like disability insurance.

How do I calculate overtime when an employee takes PTO and gets paid for more than 40 hours in the workweek?

You’re only required to pay overtime when a nonexempt employee works more than 40 hours in a workweek. Paid time the employee didn’t work – such as vacation, paid holidays, or sick leave – doesn’t count towards hours worked for overtime purposes.

A couple of examples:

If an employee takes 8 hours of sick leave on Monday, then works four 10-hour shifts on Tuesday through Friday, they would be paid for 48 hours total: 8 sick leave hours at straight time and 40 worked hours at straight time. Because the employee only worked 40 hours, no overtime is owed.

If an employee is paid 8 hours for a non-working holiday on Monday, then works five 10-hour shifts on Tuesday through Saturday, they would be paid for 58 hours total: 8 holiday hours at straight time, 40 worked hours at straight time, and 10 overtime hours for the hours worked over 40 in the workweek.

We’ve seen an uptick in complaints from employees. Is this a cause for concern?

The mere fact that you’re getting more complaints than normal isn’t necessarily something to worry about. The increase in complaints could be a sign that there are now more issues that require your attention, or it could be a sign that your employees are – for some reason – feeling safer speaking to you about their concerns.

Complaints can be a good thing because they inform you about matters that may have escaped your notice, and they indicate your employees trust you to resolve those matters. The last thing you want is for employees to keep their concerns to themselves or vent them to their colleagues (or the entire internet). You can’t solve problems you don’t know about, and unaddressed problems can quickly turn into bigger issues.

Listen to what your employees have to say, thank them for bringing the matters to your attention, keep the lines of communication open, and do what you can to resolve the issues. If several complaints relate to a single issue (or person), you may want to give that issue more attention or urgency. And, of course, any complaint that suggests there may be harassment or discrimination should be dealt with promptly and thoroughly.

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