Although Spring is almost here, many areas in the country are still being socked with winter storms.  When snowstorms hit and a business closes for the entire or part of the day, the issue often arises as to whether the workers get paid or whether they can be compelled to take vacation or PTO time.  Actually, the reason for the closure is almost immaterial but the issue of payment remains.  The question can be at least preliminarily answered by looking at the exempt status of the employees or lack thereof.  As I often note, this is not just a question of working time law under the FLSA, but State law must be examined as well. 

The Fair Labor Standards Act mandates that workers receive pay for hours actually worked.  (FLSA), employers are required to pay hourly nonexempt employees only for hours actually worked.  Thus, for non-exempt people (whether hourly or salaried non-exempt) an employer need not pay for hours not worked due to weather even if the employee was scheduled to work on that day.  Now, this begs the question of whether an employer policy provides otherwise and thus the relevant Employee handbook need also be scrutinized.

Exempt employees are a different issue.  The USDOL has spoken on this issue and has concluded that the answer depends on whether the business is open or not.  Yes, the general rule is that exempt employees must be paid in full for any week in which they do any work, the agency has concluded that if the business remains open and an exempt worker does not report, then the exempt worker is essentially choosing not to work and thus need not be paid.  Of course, they can take a PTO day to cover that day’s absence.  If the business closes, then the answer changes and the exempt worker must be paid, because his absence is then due to the operational requirements (e.g. business closing) of his employer.  If the closure is for a partial day, the eempt worker must also be paid the full salary.

In the post-COVID world we now live in, this answer may be different.  Exempt workers may stay at home and yet work, remotely, a full day.  If that occurs, then the exempt worker is working, albeit from a different location and the Company would then be obligated not to ake any deductions or make the person take a PTO day.  The employer could direct the person not to do any work, but it seems that would be self-defeating. 

The Takeaway

The danger for employers is that if a Company takes a deduction from an exempt employee’s salary which is not warranted or allowed under the inclement weather rules, that employee’s exempt status might be endangered. As well as the exempt status of all other exempt workers. I believe the guidance offered by the USDOL Opinion Letter is directly on point and should be followed. In a few weeks, hopefully, this will be but an academic exercise as Spring will be here.

We hope…

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