by Mark M. Schorr
As we head into the heart of the winter storm season, it is inevitable that employers could face some severe snowstorms and blizzards in February. Hence, this is an excellent time to brush up on the wage and hour laws, which dictate whether you are required to pay salary or hourly wages to employees who are unable to get to work during a blizzard or severe snowstorm. Here is a timely refresher article on these issues.
Winter Is Coming
The critical factors in determining whether you must pay employees who do not come to work because of a snow day or blizzard are (1) whether your office remains open and operational during the blizzard or severe snowstorm, or whether you close your office location(s) during the severe snowstorm and (2) whether employees who failed to show up for work are salaried and exempt from overtime under a recognized exception, or whether the employees in question are nonexempt hourly employees.
In connection with these issues, it must be remembered that all exempt employees must meet the salary basis test—i.e., they must be paid the same salary for each and every week in which any work is performed, regardless of the quantity (number of hours) or quality of the work.
Deductions from salary may only be made for certain designated reasons, as outlined in the regulations (e.g., absence for a full day due to sickness, accident, or personal reasons other than sickness or accident; absences for less than a full day due to approved Family and Medical Leave Act (FMLA) leave; and certain approved reductions/substitutions of salary for jury duty, witness fees, or military pay). However, under the Fair Labor Standards Act (FLSA), you are not required to compensate nonexempt hourly employees unless they are present and actually working.
Keeping these rules and principles in mind, the next determining factors are whether you close your business during a blizzard, or whether your business remains open for those employees who can get to work in spite of the snow. However, since nonexempt hourly employees are not entitled to any wages unless they report for work, these factors only pertain to salaried exempt employees.
If you close your business during a snowstorm, you may not withhold salary from exempt employees unless the storm is so severe that the business remains closed for the entire “workweek” and no work is performed by the salaried employee during the entire week.
The U.S. Department of Labor (DOL) does permit employers to require salaried exempt employees to substitute accrued paid leave or vacation for such absences, so long as the paid leave substituted is equal to or greater than the salary owed to the employee for the missed workday.
In this circumstance, if a salaried exempt employee does not have accrued leave time “in the bank,” then the full salary must be paid to the salaried exempt employee for the absence caused by the employer closing the business.
If your business remains open during the blizzard, then presumably all salaried exempt management employees should be present for the workday. However, if a salaried exempt employee decides that he cannot make it to work or will not report for work, and is absent for the entire day, the employer may reduce his salary for a full day because of personal reasons as noted above, or require the employee to use a paid leave day in lieu of salary.
You must remember that salary reductions cannot be made from the salary of an exempt employee for absences of less than an entire day, unless the absence is because of approved FMLA leave. So, an employer may not deduct any partial day’s salary if an exempt employee fails to show up for work on a snow day when the business remains open.
During February, which is typically the heart of the blizzard season, all employers should carefully examine their policies and plans in order to be up to speed on the various attendance and payroll issues that arise during severe winter weather.
Remembering the above key issues and factors should assist you in meeting all of the DOL’s requirements in the rules and regulations and ensuring that all employee compensation issues are properly handled in the event of severe winter weather.
Mark Schorr is the editor of Nebraska Employment Law Letter. He can be reached at firstname.lastname@example.org.