Like it or not, winter has finally arrived.  During times of snowy and icy road conditions, employers will undoubtedly be faced with tardiness, absenteeism, and the possibility of implementing office and/or plant closures.  One question that often arises during inclement weather is how to handle pay issues under the Fair Labor Standards Act (FLSA).  If you find yourself in that boat snowmobile, read on!  imagesWhile it’s been a while since anything new has been issued in this area, the U.S. Department of Labor has previously issued guidance to help employers administer the FLSA when bad weather affects employee attendance.  The answers to many of your questions probably depends on two factors – first, whether the employee is exempt or non-exempt, and second, whether the employer’s business remains open or closes during the inclement weather.

Must Employees be Paid When the Employer Closes its Business Due to Bad Weather? 

The DOL’s position is that employers who close their business because of weather conditions must still pay exempt employees their regular salaries for any shutdown that lasts less than one full workweek.  However, the DOL notes that no provision of the FLSA prohibits employers from requiring exempt employees to use vacation time or other accrued leave to cover the missed work.  So long as there is no state law restriction, written policy, or collective bargaining agreement which provides otherwise, employers may require employees to use their PTO to cover absences in the event of an office closure in bad weather.  Due to the negative effect on employee morale, however, many employers opt not to require employees to do this.  If you intend to require employees to use paid leave in this circumstance, you should make that clear in your written policy.  The key, for an office closure lasting less than one workweek, is to ensure that an exempt employee’s salary is not affected.

If an exempt employee is required to use PTO for an office closure but doesn’t have any leave left in his leave bank, then what?  The employee must still be paid his regular salary when the employee’s business is closed for inclement weather for less than a week, regardless of whether he has available PTO.  In cases where a weather closing leaves an employee with a negative leave balance, employers can grant the leave and allow the employee carry a negative PTO balance until he accrues additional leave to make up for the deficit in the employee’s leave bank.

The rule for non-exempt employees is much simpler – they are paid only for time worked.  Thus, if the employer’s business is closed due to bad weather, the employer is not required to pay a non-exempt employee for time that is not worked, even if the employee was scheduled to work on the day of the closure.  However, if non-exempt employees are required to report to work and asked to stay until a decision can be made whether to shut down or remain open in inclement weather, they must be paid – even if the employee is simply waiting around for his supervisor to make a decision about closing and there is no work for the employee to do. 

Must Employees be Paid When the Employer’s Business Remains Open during Bad Weather, but Employees are Either Late to Arrive, Leave Early, or Entirely Absent? 

Since non-exempt employees are paid only for the time worked, any scheduled work time that is missed due to late arrival, early departure, or absence in the event of inclement weather may be unpaid.

For exempt employees, proper pay depends on whether the employee misses a full day or only a partial day of work.  If the employer’s business remains open, but an exempt employee is unable to make it into work due to bad weather and misses an entire day, the DOL regards the absence as one for personal reasons. Thus, the employer may deduct a full day’s pay from the employee’s salary, or require the employee to use available vacation time (or accrued PTO) to cover the time off, according to the DOL.

Conversely, if the employer’s business remains open but an exempt employee shows up for only part of the day, she must be paid for a full day’s work, regardless of how long she is there.  The employee can be required to use vacation time (or other accrued PTO) to cover the hours missed due to late arrival or early departure, but the exempt employee’s salary can’t be affected.  Docking an exempt employee’s pay for partial-day absences is not permitted under the FLSA and may compromise the employee’s exempt status.

There’s no question that bad winter weather creates havoc, stress, and unpredictability for employers and employees alike.  Having clearly-communicated and consistently-followed policies about how weather-related absenteeism and tardiness will be handled can help to alleviate some of that anxiety and uncertainty, and knowing what the DOL regulations permit you to do as an employer can’t hurt either.

Julie Moore is a Member in the firm’s Morgantown office. Julie focuses her practice primarily in labor and employment law. She regularly advises and counsels employers – both private and public – on various aspects of employment law, ranging from wage and hour compliance, to employee discipline and termination issues, to disability accommodation requests.
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