Just two weeks ago, we had sun and 70 degree weather…how quickly we forget that winter is actually here. When the snow falls, schools send students home and stores start shutting down, but business leaders must make the decision to keep the office open or to close. It’s a tough choice with unintended consequences if you don’t have a policy in place.
When a business closes operations due to winter weather, it must follow the guidelines of the Fair Labor Standards Act (FLSA) to determine how to compensate employees while the business is closed. Here is a refresher on the FLSA rules:
- Paid hourly (the majority of most workforces)
- Compensated only for each hour worked
If normal business hours are 8:30 am to 5:30 pm, and the business closes because of inclement weather at 12:30 pm, as a general rule, it would only be required to pay an employee for the hours that he or she actually worked instead of the entire scheduled workday. If a business closes for an extended period, from a single day to multiple weeks, the employer is under no obligation to compensate a non-exempt employee during the period when he or she is not performing work. Another issue to consider is how widely you allow use of leave for non-exempt employees to cover periods of closing. It is not uncommon for employers to put “liberal leave” policies in place during inclement weather events.
- Paid on a salaried basis
- Performs duties to match the claimed exempt status
- Not entitled to overtime
In the event of a “snow day” or any other reason that prevents the business from opening (i.e., fire or loss of power), an employer must pay the employee for any day in which he or she is “ready, willing and able to work.” This means that even if the business must close an office for an entire day, it must still pay all of its exempt employees for that day-regardless of the fact that the business was closed and the employee performed no work. Thus, if an exempt employee works any part of that workweek, the employer must pay the exempt employee for that entire workweek. One more point to consider is the scenario where a business has to close for an entire workweek. In this case, the business does not have to pay an exempt employee for that workweek if he or she does not perform any work during that week. The use of leave to cover the paid time is an issue that should be considered by the employer as well. Whether you require the employee to use their vacation leave/PTO to cover the time that is paid but not worked in issue for an employer to consider.
Remote Working Policy
Keep in mind that employees must be paid if they can-and do-work from a remote location. However, if a business decides to remain open during inclement weather and the weather prevents an employee from coming to work, the employer might be able to deduct the missed time from the employees accrued leave time. Employers have some flexibility in how they require use of leave in these situations, so it’s a good idea to look at your past practices or policies. Also, the state in which your business operates may have an impact on that answer.
For a workplace with exempt employees who are able to work from home, it may be a good idea to plan for telework policies in the event of inclement weather or other business interruption. This approach will require some planning to avoid unintended consequences (e.g., ADA job accommodation and similar issues). A bad winter storm does not have to shut down productivity completely.
Article brought to you by:
Victor O. Cardwell
Chair, Labor and Employment Practice Group
Michael P. Gardner
Labor and Employment Practice Group