The Law @ Work

The wage/hour implications of inclement weather

by Kimberly A. Klimczuk

By Monday afternoon, many businesses had decided to close on Tuesday due to the weather predictions surrounding Winter Storm Juno.  Other businesses that remained open may have permitted employees to stay home if they could not get to work due to the weather.  Still other businesses may have been open for business for only part of their normal work day.  So, do employers in any of these situations have to pay employees who miss work due to inclement weather?

As usual, the answer is: “It depends.”

Nonexempt Employees

With respect to employees who are not exempt from the overtime provisions of the Fair Labor Standards Act (FLSA), employers generally must pay such employees only for hours worked; in other words, an employer does not have to pay an employee who does not report to work due to inclement weather, regardless of whether the employer was open for business.  However, Massachusetts’ “reporting pay” requirement creates an exception to this rule in certain circumstances.

In Massachusetts, an employee who a) is scheduled to work three or more hours; b) reports to work on time and ready to work; and c) is sent home by the employer before the end of his or her scheduled work hours must receive pay for at least three hours of work at no less than minimum wage (currently $9.00 per hour).  If an employer informs the employee in advance that the employee is not to come to work, then the employee is not entitled to pay; however, if the employer simply makes a general announcement and the employee is unaware of it and reports to work anyway, the employer will be required to pay the employee.

Exempt Employees

For exempt employees, things are a bit more complicated.  The FLSA prohibits certain deductions from the pay of exempt employees, who are supposed to receive a guaranteed salary regardless of how many hours they work per week.  For example, an employer may not deduct an exempt employee’s pay for a partial-day absence, so if an employer closes early due to snow, the employer cannot reduce the salary of any employees sent home early due to the closure.  Similarly, an employer could not dock the pay of an employee who arrives late or leaves early due to inclement weather.

An employer who remains open for business may, however, deduct a full day’s absence from an employee who does not report to work for an entire day due to weather-related reasons, because the FLSA allows deductions to be made “when an exempt employee is absent from work for one or more full days for personal reasons, other than sickness or disability.” The FLSA’s October 28, 2005 Opinion Letter makes clear that the Department of Labor considers an absence due to adverse weather conditions to be an absence for personal reasons not related to sickness or disability.

On the other hand, if the employer is closed for business, the employer may not make any deductions from the pay of exempt employees, because, as stated in the aforementioned Opinion Letter, and in the FLSA’s regulations, “deductions may not be made for time when work is not available.”  The exception to this rule is if the business is closed for the entire work week – in that case, the employer is not required to pay the exempt employee.

In any of the above scenarios, the employer may require the use of vacation time in order to cover any weather-related absences.  Of course, employers must be sure that their practices align with any written pay policies or vacation policies, or any obligations pursuant to a collective bargaining agreement.  In addition to policies with respect to pay for weather-related absences, employers also should have policies in place with respect to whether and how it will discipline employees for weather-related absences.

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