Don’t Be Bulldozed by Snow Days: What to Consider Before Docking Pay for Weather-Related Absences

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

With thanks likely to the polar vortex, states across the nation are experiencing record low temperatures this winter. The bitterly cold winter has caused employees to call off work (or show up late) and employers to voluntarily close down for a day or more. In these situations, employers are often left wondering whether they must pay employees who have taken time off for reasons related to bad weather. Under the federal Fair Labor Standards Act (FLSA), the answer depends on a couple of factors.

The first factor is whether the employee is exempt or non-exempt. For non-exempt employees, the FLSA is straightforward: the employer is only required to pay the non-exempt employee for hours that the employee actually works. So if a non-exempt employee misses an entire day or part of the day due to bad weather, under the FLSA the employer only has to pay for the time the employee actually worked. This is true even if the employer voluntarily closes its doors for the day.

The issue becomes a bit more complicated if the employee is exempt under one of the “white collar” overtime exemptions for executive, administrative, and professional employees under the FLSA. Except in limited circumstances, to satisfy the “salary basis” test for the white collar exemptions, an exempt employee must receive his or her full salary if he or she performs any work during the workweek, regardless of the “quality or quantity of the work performed.” In order to preserve the overtime exemption, employers may not make deductions from an exempt employee’s salary if the employee is “ready, willing, and able to work” but the employer shuts down for the day, or if the absence is caused by the operating requirements of the business.

This brings us to the second factor: whether the exempt employee is “ready, willing, and able to work,” despite the inclement weather. According to the U.S. Department of Labor, this depends on who made the decision to not work—the employer or the employee. If the employer voluntarily decides to close down for less than a full workweek due to bad weather, then the employer must pay the exempt employee his or her full salary for the week or risk jeopardizing the exempt status of the employee (and other similarly situated employees) by violating the salary basis test under the applicable FLSA exemption. The employer may direct the exempt employee to take paid time off, so long as the employee still receives payment in an amount equal to the employee’s guaranteed salary. If the exempt employee is not eligible for such leave or does not have any time off remaining, the employer must still pay the employee’s regular salary.

On the other hand, if the employer remains open and the employee decides to not come in to work because of the inclement weather (for example, due to bad road conditions during a snowstorm) then the employer may require the employee to use vacation time, paid time off, or other accrued paid leave. If the exempt employee is not yet eligible for such leave or has no time off available, the employer may deduct one full day’s absence from the employee’s salary. However, the employer should not dock an exempt employee’s salary for any partial day absence (for example, if the employee shows up late due to bad weather) as that would directly run afoul of the salary basis requirements for the common FLSA overtime exemptions. And, given the ease with which employees may work remotely due to increased technology, an employer should always check to see if the employee worked from home before docking his or her salary due to inclement weather.

Of course, an employer may have voluntarily adopted policies providing for payment in these circumstances, or the terms of a collective bargaining agreement (or state law) may require payment. Employers should always consult these sources before requiring any employee, whether exempt or non-exempt, to incur unpaid time for weather-related absences.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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