Question

We are looking ahead to the next few months, which may bring big snowstorms.  In the past, we have closed a few times because of the weather, and I want to be sure that our practices are legally compliant, especially when paying employees. What are the rules about deducting from employees’ pay, especially those exempt under the FLSA?

Answer

The federal Fair Labor Standards Act (FLSA) is the key law determining when employees must be paid. Under the FLSA, employers must classify employees as exempt or non-exempt, depending upon how they are paid (hourly or salaried) and the job duties of the employee’s position. Massachusetts’ minimum wage laws and regulations are also a factor.

The FLSA requires that non-exempt employees be paid only for the time they work unless a contract or company policy requires otherwise. Exempt employees must be paid for the full week without deduction, although there are several exceptions in the FLSA for allowable deductions from the week’s pay.

Assuming your employees are properly classified, let’s get started. The information in this article will not be impacted by any decision regarding the salary threshold currently before the US Department of Labor (DOL) and the federal court system.

One important consideration: Many FLSA regulations were adopted long before remote work. With the widespread adoption of computers and smartphones, employees have significantly more opportunities to work from home. This shift introduces additional complexities for employers, who must account for remote work when determining whether and how to compensate employees during snow days.

Q. A business closes for the entire week because of bad weather. Must exempt employees be paid?
A. No. The US Department of Labor (DOL) regulations state, “Exempt employees need not be paid for any workweek in which they perform no work.” See clause (a)(1) of the regulation. The DOL has affirmed that position in Opinion Letters as well.

Q. An exempt employee performs work at home when the office is closed for an entire week because of bad weather. Must the employee be paid for that week?
A. Yes. See the regulation cited above.

Q. One of my non-exempt employees performed work at home when the office was closed for the day due to bad weather. Pay?
A. Yes, but only for the hours worked. An employer’s challenge is determining a satisfactory method to track the time. Establishing a time tracking system in advance makes sense to minimize potential disputes over actual hours worked. The DOL permits employers to track time using any method if it is “complete and accurate.” That means emails reporting time worked could work. However, it would be helpful to notify the employee in advance of what time method you want to use. The US Department of Labor website includes a time-tracking app.

Q. The office opened, but one of my exempt employees couldn’t get to work because of bad weather. Pay?
A. No, provided the employee does not 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 requirement that exempt employees be paid for any week in which they perform any work) and may be placed on leave without pay for a full day(s) the employee fails to report to work due to such circumstances as a heavy snow day. Open this link and scroll down to exception b (1), which discusses absences for personal reasons. https://www.law.cornell.edu/cfr/text/29/541.602

Q. The office was closed, but the exempt employee was ready, willing, and able to work. Pay?
A. Yes. An exempt employee’s pay is not subject to a reduction because of variations in the quality or quantity of work performed. Pay may not be docked since the employee was ready to work but was prevented by the employer’s decision. This DOL opinion addresses the issue: Wage-Hour Opinion Letter dated October 24, 2005, No. FLSA2005-41.

Q. The office was open 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?
A. Yes. Work at home is also work. Any time an exempt employee misses less than a full day of work because of snow or other adverse weather conditions, salaries 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 this DOL Opinion Letter from 2005. Any employer doing so should include a policy to this effect in the employee handbook to minimize the risk of unpleasant disagreements later on.

Q. We opened today, but an exempt employee couldn’t work due to bad weather. After spending 90 minutes waiting for a bus, the employee gave up and went home. Pay?
A. Qualified no. Commuting is never working, but if the employee did work (i.e., more than a minimal 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. Or if the employee returned home and worked from home, they would have to be paid. De minimis is defined as minor or trivial amounts of time, such as seconds or a few minutes at most.

Q. Work is open today, but a non-exempt employee cannot arrive due to the bad weather. Pay?
A. No. It is the company’s decision to allow a non-exempt employee to draw from their vacation bank, PTO program, or sick leave if it wishes to. This policy is addressed in the company handbook in advance to ensure consistent results.

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?
A. Qualified no. Commuting is not working time; however, it is the same as above. If the employee does more than a de minimis amount of actual work while trying to commute (e.g., checking emails or making phone calls), the employee must be paid for the time worked.

Q. We are closing early due to bad weather. Pay for non-exempt employees?
A. Qualified no. The employer must pay for any hours worked, and if the time worked is less than 3 hours, and the employee is scheduled to work for three hours or more, the employee must be paid reporting pay for the difference. Reporting pay applies when an employee reports to work on time, and there is no work for the employee to perform. The state regulations (see section 27.04(1)0 state that “when an employee who is scheduled to work 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, the employee shall be paid for at least three hours on such day at no less than the basic minimum wage.”

Q. We closed early, but some essential non-exempt personnel were asked to stay later. I know I owe them extra time worked, but must I pay them for the difference between their standard commute time and the additional time it takes them to get home in bad weather?
A. No.

Q. The office closed hours ago because of bad weather, and some non-exempt essential personnel were asked to stay later. They are now stuck here for the night. Pay?
A. It depends.

• If the employees are completely relieved from duty and can use the time for their own pursuits (there is food available, relatively comfortable places to sleep, television or other entertainment, etc.), then you do not need to pay them for the time that they are not performing work
• 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, though that is likely to be received very poorly by employees.

In a case like this, before deciding whether to pay them, it makes sense to remember who asked them to stay, why they were asked to stay, and who benefitted from them staying. If they remained at the employer’s request, they have a stronger argument in favor of being paid for the additional time.

For More Information

Employers should carefully document policies about pay during weather disruptions in the employee handbook. AIM members can call the Helpline at 1-800-470-6277 or helpline@AIMnet.org for further guidance.