by Laura Pokrzywa
It’s winter. A little snow is inevitable. Occasionally, though, a noteworthy storm, such as the blizzard that just hit New England, makes travel so difficult that businesses are forced to close. Unfortunately, snow isn’t the only problem. Hurricanes, flooding and other emergencies have caused the same grief in warmer months. As if the loss of revenue isn’t painful enough, emergency closings could lead to wage and hour issues if your Inclement Weather policy is not compliant with the Fair Labor Standards Act (FLSA).
If you have such a policy, this is a great time for a quick review – before the next big storm hits. If you don’t have an Inclement Weather policy, you will need to create one. In order to get started, we need to know what the law requires. The biggest consideration will be pay requirements.
Do you need to compensate employees for the time they miss due to inclement weather?
Generally, exempt employees are paid on a salary basis. This means they receive the same amount each week, regardless of the actual time worked that week. The FLSA requires that exempt employees are paid if they are “ready, willing and able to work” but work is not available – such as during a weather-related closure. Therefore, exempt employees must be paid their regular weekly salary during any week in which they worked – even if that week included a day or more of closures.
If the company remains open but the exempt employee chooses not to come in for any reason, including inclement weather, that employee may be required to use available vacation or personal time. If the exempt employee has already exhausted all available paid time off, the company is allowed to deduct one full day’s pay — but only if no work was done that day. Such a deduction could be contested if the employee is typically able to work remotely.
On the other hand, non-exempt employees must only be paid for time that they actually work. Employers are not obligated to pay these employees for time missed during a company closure. Some companies, however, choose to go above and beyond this rule and pay non-exempt employees for work time missed due to an emergency shutdown.
A few states have “reporting time pay” laws that require employers in certain industries to pay non-exempt employees a minimum number of hours if the employees are called to work only to be sent home early due to a closure or lack of work. These states include California, Connecticut, District of Columbia, Massachusetts, New Hampshire, New Jersey, New York, Oregon and Rhode Island. Employees with wage agreements (such as collective bargaining agreements) may have minimum pay requirements, as well.
Other considerations for your Inclement Weather policy:
1. What if the office remains open, but some employees choose not to report due to travel conditions? Your policy should clearly state if employees will be required to use available paid time off or if this will be considered an unexcused absence. Remember, if the employee who elects not to come in is an exempt employee, you may be allowed to deduct a full day’s absence from the employee’s salary if that employee has no available paid time off to use. However, employers should never make a full day’s deduction if the office is officially closed, since the employee had no choice but to stay home.
Be sure your Inclement Weather policy and your Attendance policy do not conflict. Remind employees that anytime the office is open but they are unable to report for regularly scheduled work, they must call in according to your Attendance Policy requirements.
2. How will you notify employees of the closure? Some companies utilize the company voice mail, instructing employees to check voice mail before their shift if the weather is threatening. Others utilize email. Just be sure all employees have access to email and know to check it when storms hit. Some companies ask employees to watch the local television station (or check its website) for announcements of plant or office closings. Perhaps the best method, if feasible, is to have managers and supervisors call or text their teams. Your written policy should inform employees of the method your company will use.
You can’t do anything about the weather. But you can be ready with a good plan and a sound policy. If you have questions about this or any other HR issue, let us know! We would be happy to help. Send your questions to HRHelpline@eastcoastrm.com .
Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this Web site do not create an attorney-client relationship between East Coast Risk Management or our employment law attorney and the user or browser.