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Prudent employers are preparing themselves for the many issues that arise from weather-related absences and facility closures. The Old Farmer’s Almanac has predicted that the Northeast will receive above-average snowfall for the 2017 winter season. Given the challenges that come with winter weather, many employers will face the tough decision of whether to shut down in preparation of an impending storm, close early during a storm, or keep their facilities open.
These decisions have an immense impact on employees, and lead to many employment law questions: Do employers have to pay employees if the office or store closes? What role does accrued vacation time play? Are all employees treated the same?
The rules for compensating employees for weather-related absences depend on several factors, such as the status of the employee as exempt or non-exempt, state and local law, the employer’s internal policies, and whether the employer or the employee initiates the absence.
Non-Exempt Employees and Weather-Related Absences
Under the federal Fair Labor Standards Act (“FLSA”), non-exempt employees generally must be paid only for the time they actually work. Therefore, if an employer closes its facility or a non-exempt staff member chooses not to report to work during inclement weather, he/she does not have to be paid. Also, when an employer closes the facility, a non-exempt employee may choose to use his/her accrued vacation or paid time off. Employers may also require staff members to use their accrued vacation or paid time off during weather-related absences.
While the FLSA does not require non-exempt employees to be compensated for work missed due to inclement weather, employers should be aware that some states have “reporting time pay” laws. “Reporting time pay” laws (also referred to as “show-up pay” or “call-in pay”) require employees be paid for a minimum amount of time whenever they report to work, even if no work is available or they are subsequently sent home.
For example, in New York, if an employer decides to close its facility earlier than scheduled due to inclement weather, the “reporting time pay” law requires employees who reported to work to be paid for a minimum of four hours. In New Jersey, employers are required to pay for a minimum of one hour.
Exempt Employees and Weather-Related Absences
The FLSA requires employers to pay exempt employees their full, regular salary if the individual performs any work during the workweek. If an organization closes due to inclement weather, the employer may not deduct pay from the exempt employee’s normal salary as long as he/she worked that week. The same holds true if the employer decides to close early due to weather conditions.
On the other hand, if an employer remains open during inclement weather and an exempt employee chooses not to report to work, the employer can deduct a full day’s pay from the employee’s salary. However, the employer cannot make any deductions if an exempt employee comes in late or leaves early due to the weather.
As with non-exempt employees, employers may require exempt employees to use vacation or other accrued paid time off when he/she misses full or partial workdays. Note however, that if an exempt employee does not have any accrued paid time off remaining, and comes in late or leaves early, the employer must still pay that employee for the full day’s work.
When making weather–related decisions employers may consider any relevant provisions in employee handbooks, employment contracts, or collective bargaining agreements. If a relevant provision does not yet exist, employers would be prudent in codifying their policies in an employee handbook to properly enforce them and to provide transparency. A policy can cover the definition of inclement weather, how pay is handled (including use of paid time off), how work responsibilities will be covered, and instructions for when an employee cannot commute to work.
Employers should have a plan in place to communicate with all employees in the event of an office closing. Having supervisors call employees throughout their corresponding departments, broadcasting closings on the employer’s website, or sending an e-mail to all employees would be effective methods of keeping employees informed. Sending these communications as early as possible helps employers avoid conflicting with “reporting time pay” laws.
Commuting during harsh weather conditions creates stress for the organization’s entire team. Recognizing the issues that accompany such a commute is key to striking a balance between productivity and employee relations.
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