Photo: Todd Leeuwenburgh
By Shlomo D. Katz
This time of year, when snow and ice pose challenges in many parts of the country, many employers wonder about the rules for paying employees in the event they must close the office due to bad weather and unsafe road conditions. Below we provide answers to some frequently asked questions.
The office will be closed for the full day today because of bad weather. Must I pay employees?
That depends on their FLSA status. For exempt employees, the answer is an unqualified “Yes.” An exempt employee’s pay is not subject to reduction because of variations in quality or quantity of work performed. If the exempt employee is ready, willing and able to work, but was prevented by the employer’s decision from doing so, you may not dock his pay (Wage-Hour Opinion Letter No. FLSA2005-41, October 24, 2005).
For nonexempt employees, the rules are different. Hourly non-exempt employees only have to be paid for actual working time, unless a contract requires otherwise. However, some non-exempt employees are salaried — for example, if you are using the fluctuating workweek method of overtime compensation. In that case, you must pay the salaried non-exempt employee for today.
Can I require exempt employees to use their vacation or accrued leave in this situation?
Arguably, yes. Since the FLSA does not require employers to provide vacation or paid-time off, it is enough that you are paying the employee. It shouldn’t matter what pool of money it comes from.
The office will be closed for the full week because of bad weather. Must I still pay exempt employees?
No. U.S. Department of Labor regulations make clear that: “Exempt employees need not be paid for any workweek in which they perform no work.” Therefore, when a place of work is closed for a full week, whatever the reason, employees need not be paid for that week (Wage-Hour Opinion Letter, April 30, 1975).
An exempt employee performed work at home when the office was closed because of bad weather. Must I pay her for the full day?
Yes.
A non-exempt employee performed work at home when the office was closed because of bad weather. Must I pay him?
Yes, for the hours actually worked.
Note: These are the answers mandated by the federal Fair Labor Standards Act (FLSA). State laws may dictate different or more nuanced answers. Also, while not required by law, it’s always a good idea to take into account the employee morale side of the equation. That, of course, may require a solution that is more generous than what the law requires. Now back to our questions.
The office is open today but an exempt employee can’t make it in because of bad weather. May I dock him a day’s pay?
Yes, if he does no work at home. An employee who is absent due to inclement weather is absent for personal reasons and may be placed on leave without pay for the full day(s) he fails to report to work due to such circumstances as a heavy snow day.
The office was open today but an exempt employee couldn’t make it in because of bad weather. Instead he worked at home for a few hours and spent the rest of the day making a snow man with his kids. Must I pay him for the full day?
Yes. Work at home also is work. If exempt employees miss less than a full day of work because of snow or other adverse weather conditions, their salaries may not be docked.
The office was open today but an exempt employee couldn’t make it in because of bad weather. After spending 90 minutes waiting for a bus, she gave up and went home. Must I pay her for trying to come to work?
No. Commuting is not working time. But, if she did more than a de minimis amount actual work while waiting for the bus (including checking emails and making phone calls on her portable device), you’d have to pay for the full day.
The office was open today but a non-exempt employee couldn’t make it in because of bad weather. After spending two hours trying to commute in, he gave up and went home. Must I pay him for trying to come to work?
No. Commuting is not working time. But, if he did more than a de minimis amount actual work while sitting in traffic (including checking emails and making phone calls on his portable device — hands free, of course), you’d have to pay for the time actually worked.
Office is closing early because of bad weather. Must I pay exempt employees for the full day?
Yes.
Can I require exempt employees to use their vacation or accrued leave in this situation?
Yes.
The office is closing early because of bad weather. Must I pay non-exempt employees for the full day?
No, but you must pay for the hours actually worked.
Shlomo D. Katz, counsel in the Washington, D.C., office of Brown Rudnick LLP, practices wage and hour law and advises clients on employee classification and salary test issues.