Paying Employees During Bad Weather Closings

by Michael Haberman on November 18, 2011 · 0 comments


As December approaches the chances for snow and ice increase (at least in the Northern Hemisphere) and thus the chances of employees not being able to make it to work go up as well. The question becomes how do we pay employees during bad weather closings? A recent newsletter from HR Specialist entitled We’re in for nasty weather: When must you pay? provides some answers.

First let me point out that their answer, and my comments as well, are based upon what is required by the Fair Labor Standards Act (FLSA) and the US Department of Labor. Your policies must meet this minimum standard but can be more generous than the law allows. Additionally there may be some law under a state or local jurisdiction that requires more than the FLSA requires and you need to be aware of that situation.

This question becomes easy to answer for your hourly nonexempt employees. If weather prohibits them from coming to work or weather results in your place of business being closed you are not required to pay them anything under the FLSA. The law only requires that you pay people for ACTUAL  hours worked. Of course you may have policies that allow them to claim Paid Time Off (PTO) and taht is fine, but that is a policy issue not a legal one.

Paying exempt employees becomes more problematic. According to the HR Specialist:

The snow’s coming down pretty good and an exempt employee calls to say she can’t make it in today because her car is stuck. Can you deduct a full day’s pay from her salary for that missed day? Yes, according to a pair of U.S. Labor Department opinion letters on the issue. … What if your workplace closes down because of the bad weather? In that case, it’s a different story. You can’t dock her pay, but you can require her to use accrued leave time for the missed day.

So it becomes a distinction between whether the employee is unable to make it to work or if the weather is so bad that your place of business has to close. In the former case HR Specialist says “When your organization remains open during inclement weather and an exempt employee misses work for his own (non-illness) reason, you can take a full-day deduction from the person’s salary, says the Labor Department letter, which was answering a health care facility’s inquiry. Or, the employer can require the employee to use vacation time or accrued leave to cover the time off.”

In the situation where you have had to close your business due to snow (or floods, hurricanes, landslides, volcanic eruptions … well it could happen) then your options for paying exempt employees are different. According to the HR Specialist “If you do that, your organization can require exempt employees to take vacation time or use leave, but you can’t insist on leave without pay.” According to the USDOL “When the office is open, an exempt employee who has no accrued benefits in the leave bank account does not have to be paid (i.e., may be placed on leave without pay) for the full day(s) s/he fails to report to work due to such circumstances as a heavy snow day.”

Both the HR Specialist and the USDOL point out that deductions can only be made in FULL DAY INCREMENTS. However the USDOL does point out:

Deductions from salary for less than a full day’s absence are not permitted under the regulations. Therefore, where the employee’s absence is for less than a full day, payment of an amount equal to the employee’s guaranteed salary must be made even if the employee has no accrued vacation or other leave benefits. However, as stated in response to question #2, a deduction from an employee’s leave bank or salary may be made for absences of one or more full days for personal reasons, other than sickness or accident.

The opinion letters that HR Specialist references from the USDOL are  FLSA2005-46 and FLSA2005-41. I would suggest you read both of these because there is more detail included in those letters. I do want to point out that these letters were written in 2004 and 2005 and they do not address the subject of telework. Today it is very likely that if you have an exempt employee who is unable to make it to the office due to inclement weather they will still be able to perform work by use of their laptops or smart phones. If they are performing work at home you will be on “real thin ice” if you try to deduct one full day from their pay or PTO balance just because they did not physically make it to the office. (And yes that pun was intended.) For that matter, if you have nonexempt employees that perform work from home that is also compensable time.

In today’s world of smart phones and Ipads and laptops you have to be very guarded in deducting or refusing to pay people just because they have not physically presented themselves at the office. You need to determine what you as an organization need and want to do. It requires you to understand your culture, the work that can be done, and the circumstances of each situation. Be prepared for how you will be handling situations. Bad weather situations in the US have already occurred this year and will be very likely to occur again before the winter season is out.

 

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