Weather Closing: Must You Pay Employees Who Are Not at Work?

When you experience a weather closing, how do you handle pay for your employees? Must you pay everyone? What are the differences between non-exempt and exempt employee pay?

Although much of the country has experienced a fairly mild winter compared with years past, the issue of inclement weather doesn’t go away. Winter rains and snows will soon give way to spring floods and even tornadoes. And in California, warmer weather may also mean wildfires. Every season brings its own weather woes, leaving employers wondering how to handle tricky issues such as attendance policies, leave time, and when people must be paid in spite of attendance at work.

In a CER webinar titled “Weather-Related Absenteeism in California: Policies, Payroll Adjustments, Telecommuting, and More,” Denise M. Visconti outlined some guidance for employers on this tricky topic. The rules differ depending on whether the business is closed, closes mid-day, or stays open but some employees cannot come to work.

Besides these distinctions, there are also differing rules for different employees, Visconti explained. “There are rules for exempt employees that differ fairly drastically from non-exempt employees . . . there are also differences between federal and California law, and how each of those laws treat both exempt and non-exempt employees.” How do you keep it all straight?

Paying Employees During a Weather Closing: Rules for When the Business is Closed

“The general default for exempt employees, if they work any portion of the week – even just to check an email – they must be paid, whether the business is open or closed . . . non-exempt employees need only be paid for the hours they actually work.” Visconti explained. This is consistent with the rules under the FLSA.

Under California law, the rule is fairly similar. Non-exempt employees need only be paid for the hours they actually worked. For exempt employees, it basically follows the federal law: there cannot be any deductions for exempt employees for absences that are occasioned by the employer or the operating requirements of the business.

There is a limited exception for exempt workers under both California and federal law, Visconti noted. It essentially states that “if an employee who is exempt (salaried) does no work in a particular work week, the employee need not be paid for that week. So, for example, if the business closes for an entire week due to some emergency . . . the exempt employee does no work for the entire work week (and that means doing nothing) . . . they need not be paid during that week.”

Paying Employees during a Weather Closing: Compensation of Employees When the Business Closes Mid-Day

If the business is already open for the day, but the employer sends employees home for some weather-related reason, there may be some reporting-time pay requirements. Typically, this only applies to non-exempt employees, since exempt employees will be paid if they show up at all. The reporting-pay requirements are specific to state law, there is no federal requirement. Be sure you’re following California law. The general rule in California is that non-exempt employees who show up must be paid for 50 percent of their scheduled shift at their regular rate. This generally translates to paying an employee for a minimum of 2 hours and not more than 4 hours of reporting-time pay. The time the employee actually works can be included in that total.

However, under California law there are also special rules for “acts of God” and other inclement weather-related closures. For example, if operations cannot continue due to a state of emergency declaration, then reporting-time pay requirements are not applicable. Be sure to check the legal specifics of your situation when determining whether you will be required to pay reporting-time pay when closing the business.

Paying Employees during a Weather Closing: Compensation of Employees When the Business is Open

When the business remains open, but an employee does not come to work, must you pay them?

For salaried, exempt employees: if the employee reports to work, the salary must be paid. If the employee stays home, but works, he or she must be paid. However, there is one exception: if the salaried employee does not report to work, the business is open, and the employee does not work that day (makes themselves “unavailable” for work for personal reasons) – then it can be treated as a day off for personal reasons. In that case, pay can be docked. But the non-work must be for personal reasons.

Non-exempt employees who do not come to work are not entitled to any pay.

Paying Employees during a Weather Closing: Compensation of Employees When the Business is on Stand-By

In this scenario, again, exempt employees must be paid if they are performing any work during the work week. For non-exempt employees who must wait out the weather, both federal and state law require some of that time to be paid.

Under federal law, Visconti explained, “all of the time that the employee is required to be on duty or be on the employer’s premises or remain at the employer’s place of work and either required or permitted to work, the employee may be entitled to pay. Both conditions must be satisfied.”

Under California law, Visconti continued “any time the employee is under the control of the employer or required to work or permitted to work, they must be paid.” However, there may occasionally be differing levels of pay for this time. On-call situations differ, however. Whether the employee has to be paid during on-call time depends on the level of control the employer has over the employee during that time.

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Attorney Denise M. Visconti of Littler Mendelson PC handles a broad variety of employment litigation matters, most often stemming from claims arising under the California Labor Code and the Fair Labor Standards Act, alleging overtime misclassification and other wage and hour violations. She also has experience with single-plaintiff claims involving wrongful termination, sexual harassment, employment discrimination, and accommodation.