Major weather events like the one now taking place raise a diverse set of questions for employers from employee pay to partial or full day closures. Here are frequently asked questions along with answers.
Q. The business will be closed for the entire week because of bad weather. Must exempt employees be paid?
A. No. The US Department of Labor DOL regulations state that: "Exempt employees need not be paid for any workweek in which they perform no work." However, this is unlikely to apply since most exempt employees will have worked at least Monday and perhaps other days this week.
Q. An exempt employee performs work at home when the office was closed because of bad weather. Must the employee be paid?
A. Simple answer, yes. The FLSA regulations make it clear that “An exempt employee must receive his or her full salary for any week in which he or she performs work, without regard to the number of days or hours worked. There are exceptions but none of them apply in this case.
Q. A nonexempt employee performed work at home when the office was closed because of bad weather. Pay or no pay?
Pay, but only for the hours actually worked. The challenge an employer may face is determining a satisfactory method to track the time. It makes sense to establish a method to track the time in advance so that there is no dispute about how much time was actually worked. The DOL permits employers to track time in any method as long as it is “complete and accurate”. Given it is likely too late to develop a system this week, using emails reporting time worked is an option.
Q. The office opened but one of my exempt employee’s couldn’t get to work because of bad weather. Pay or no pay?
A. No pay, if the employee indeed does no work at home. An employee who is absent due to inclement weather is absent for personal reasons (one of the recognized exceptions to the FLSA pay requirement referred to in question 2) and need not be paid if the employee is absent for a full day(s). Again it is crucial to remember this only applies if the workplace is open.
Q. The office opened today but an exempt employee couldn't make it in because of bad weather. Instead the employee worked at home for a few hours and spent the rest of the day shoveling snow. Pay or no pay?
A. Pay. Work at home is also work. Furthermore, anytime an exempt employee misses less than a full day of work because of snow or other adverse weather conditions, his/her salary may not be docked.
Q. May an employer require an exempt employee to use vacation or accrued leave for part of the day in this situation?
A. Yes according to a DOL Opinion Letter from 2005. This is different from a deduction in that the employee still gets a full day’s pay, just from two separate accounts. It may help eliminate some misunderstandings later about an employee’s remaining time off if you make it clear to your employees that you are charging their vacation or PTO account. How you handle this issue is more likely to be an employee morale issue than a legal issue given the lateness of your decision.
Q. We opened today but an exempt employee couldn't make it in due to bad weather. After spending 90 minutes waiting for a bus, the employee gave up and went home. Pay or no pay?
A. Qualified no pay. Commuting is never working time but if the employee did actual work (i.e. more than a de minimis amount of work) while waiting for the bus (e.g. checking emails, making phone calls), the employee is working and must be paid for the day.
Q. Work is open today but a nonexempt employee is unable to arrive due to the bad weather. Pay or no pay?
A. No pay. If a nonexempt employee performs no work, they are not required to be paid.
Q. Work is open today but a non-exempt employee couldn't make it in because of bad weather. After spending two hours trying to commute the employee gave up and went home. Pay or no pay?
A. A qualified no pay. Commuting is not working time. However, see question 7 above. If the employee does more than a de minimis amount of work while trying to commute, the employer must pay for the time worked.
Q. We are closing early due to bad weather. Should our nonexempt employees be paid?
A. Only for the hours actually worked but see question 11 below.
Q. What do we do if a nonexempt employee reports for work and we send him/her home?
A. Massachusetts has regulations governing reporting or show up pay. The regulation states that “a nonexempt employee who is scheduled to work for three or more hours, reports for duty at the time set by the employer, and that employee is not provided with the expected hours of work, must be paid for at least 3 hours on such day at no less than the minimum wage”. As per the AIM wage survey, many employers pay their employees 3 or 4 hours at their regular rate
Q. We closed early but some essential nonexempt personnel were asked to stay later. I know I owe them for extra time worked but must I pay them for the difference between their normal commute time and the extra time it takes them to get home in the bad weather?
Q. The office closed hours ago because of bad weather, and some non-exempt essential personnel who were asked to stay later are now stuck here for the night. Pay or no pay?
A. It depends.
- If the employees are completely relieved from duty and are able to use the time for their own pursuits (there is food available, relatively comfortable places to sleep, a television or other entertainment, etc.) then you do not need to pay them for that time.
- If they are relieved from duty but there is absolutely nothing they can do with their time, not even somewhere to sleep (besides the hard floor), then an argument can be made that you have to pay. Even then, you would only have to pay the minimum wage, not the employee's regular wage rate but again see question 11 above.
While these Q & A’s address many of the questions about work and blizzards, it may not address your particular case. In that case, should you have any questions about this or any other HR related question please contact the AIM Hotline at 1-800-470-6277.