This alert is the second in a 12-month FLSA series (Leah’s New Year’s resolution! Read FLSA #1). Given this week’s forecast for snow, sleet, and freezing rain, we know this information is timely.
Do you have to pay employees if it snows and it impacts your office operations?
The Short Answer
It depends on whether these employees are exempt or non-exempt and, potentially, what your employee handbook’s leave policy states.
Let’s break it down and consider two different snow-day situations: (1) office is closed versus (2) office is open but an employee is snowed-in.
Snow Day Situation 1: The Office Is Closed.
As a general rule, exempt employees must be paid for the full workweek when they perform any work during these specific 7 consecutive days.
The Department of Labor Wage and Hour Division (W&H) specifically forbids deductions from exempt employees’ salaries for a day’s pay when the employer closes the office due to inclement weather. As long as the employee is “ready, willing and able” to work that day’s absence was not caused by the employee’s own actions.
If you have a paid time off policy that permits you, as the employer, to deduct from an exempt employee’s accrued and unused leave bank on snow days, then the employee instead would be using PTO for the snow day instead of working.
Ali is an exempt employee of Sampleco Inc. If Ali works Monday through Thursday; it snows a foot on Thursday night. The office is closed officially on Friday yet Ali will be paid for Friday because she worked at some point during the workweek. If Sampleco’s policy allows it, they can require Ali to use any accrued and unused PTO for snow-day pay because she is an exempt employee. If Ali has exhausted her PTO, she still must be paid for the snow day. One solution is for Sampleco to advance her 8 hours of PTO and require it be made up over the coming weeks.
The Bottom Line
Remember, you can’t deduct from an exempt employee’s salary because you closed the office due to inclement weather. You can deduct from the leave bank to fulfill those hours not worked as long as your employee handbook’s leave policy states this clearly. It is important to understand these nuances as you make your way thru the blinding blizzard that is the FLSA.
If the office is closed and the non-exempt employee performs no work, you do not have to pay this person. If he/she performs some work, then he/she must be paid for the time she worked.
Bonnie is a non-exempt employee. On Friday, she drives to the office through a snowstorm, clocks in, organizes her tools, and then learns the office is closed. She then clocks out and leaves. Bonnie must be paid for the 10 minutes that she was clocked in.
The Bottom Line
Non-exempt employees are only paid for time actually worked.
Snow Day Situation 2: The Office Is Open. The Employee Is Snowed-In.
If the office is open and the exempt employee chooses not to report to work, the employer may deduct from the employee’s salary for that day’s work. The employee made a personal decision not to come to work. You could consider granting “liberal leave” use so an employee’s salary is not compromised. However, technically, an employee who chooses not to come to work on a day the office is open could be out of a day’s pay.
Non-exempt employees are only paid when they perform work, and a snowed-in employee performs no work. Therefore the employee won’t be paid for the snow day. If the employer’s policy permits it, the non-exempt employee can choose to use PTO for the day.
What About Teleworking?
We should add that whether an employee is exempt or non-exempt, if he/she works from home during the snow day, that time counts as hours-worked for which he/she would be paid.
Many employers choose to permit or require exempt employees to work from home when snowed in and the office is open. However, you will want to be careful with this approach. There are many nuances that come into play when opening up the teleworking flood gates!
State laws may also come into play, which require, for instance, pay for employees who report to work and are turned away. Be sure to update your inclement weather, PTO, and telework policies regularly!
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This e-alert is intended to provide you with some ideas about the employment law questions we are asked frequently. Keep in mind each situation is different. If you have a question about your particular situation, please contact any of us on the Labor & Employment team. We stand ready to assist.