Let It Snow, Let It Snow, Let It Snow: What Employers Should Remember When Bad Weather Hits

In addition to bringing nearly two-feet of snow, Winter Storm Juno has also brought a gust of wage and hour issues for employers. Unfortunately, it is likely not the last time this winter that employers will have to consider whether employees who do not attend work due to inclement weather must be paid.

By way of brief background, an employer’s payment obligations often depends on whether the employee is classified as “exempt” or “non-exempt” under the Fair Labor Standards Act of 1938 (“FLSA”), a federal law that establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments.

Exempt Employees

Pursuant to the FLSA, exempt employees are not eligible for overtime pay, must earn a salary and must hold a position with job responsibilities the U.S. Labor Department deems appropriate (e.g. executive, administrative, educational, professional, computer-related). These types of employees must be paid their regular salaries for any business closure that lasts for less than one week. In other words, irrespective of how many hours or days he or she actually works, if an exempt employee works any portion of the week, the employer must pay the employee his or her full salary, even if the office closes due to inclement weather. The logic behind this rule is that “if the employee is ready, willing and able to work, deductions may not be made for time when the work is not available.”[1]

While an exempt employee must be paid his or her regular salary when the office is closed due to inclement weather, an employer may require the exempt employee to use paid vacation days for time missed during such business closure. As the U.S. Department of Labor (“DOL”) reasoned in a recent opinion letter, since “the FLSA does not require employer-provided vacation time . . . there is no prohibition on an employer giving vacation time and later requiring that such vacation time be taken on a specific day(s).” [2] In the event that the exempt employee does not have any accrued vacation time, the employee would then effectively receive a paid day off. The DOL opined that an employee in such a scenario “still must receive [its] guaranteed salary for any absence(s) occasioned by the employer or the operating requirements of the business.”[3]

Additionally, if an employer’s business remains open during inclement weather, and the exempt employee fails to report to work, the employee may have to use vacation days. If the employee has no accrued vacation time, then the employee may be docked salary for the day(s) absent.

Non-Exempt Employees

Non-exempt employees are eligible for overtime pay and must be paid minimum wage. Unlike exempt employees, who are generally paid during time off from work due to inclement weather, non-exempt employees are not usually paid for such time off. In other words, pursuant to the FLSA, if non-exempt employees do not work, they are not entitled to pay, regardless of the reason. Although this is the general rule regarding non-exempt employees, there are a few notable exceptions.

First, some states impose stricter rules on employers of non-exempt employees. For example, under New York’s Call-in Pay Law, employers must pay hourly workers for reporting to work, even if there is no work available. The Call-in Pay Law specifically sets forth that “[a]n employee who by request or permission of the employer reports for work on any day shall be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.”[4]

Furthermore, the employer’s own internal policies may establish that non-exempt employees will receive compensation for missed work time due to inclement weather. Such “inclement weather policies,” which are not required by law, provide additional protections for workers and are frequent topics of conversation during this time of the year.

With the number of weather-related closings increasing over the last few years, employers should review, and if necessary, revise their written continuity plans and inclement weather policies in order to minimize disruption to business and lost time and profits. Likewise, employers should review all policies and procedures to ensure compliance with the FLSA and that all employees understand how bad weather will affect attendance, pay, and the overall health of the company.

If you or your institution has any questions or concerns regarding employment related issues, please contact James G. Ryan at jryan@cullenanddykman.com or at 516-357-3750.

This post was written with Scott Brenner, a Law Clerk at the Firm.

[1] 29 C.F.R. § 541.602(a).

[2] http://www.dol.gov/whd/opinion/FLSA/2005/2005_10_24_41_FLSA.htm.

[3] Id.

[4] N.Y. Comp. Codes R. and Regs. tit. 12, § 142-2.3.