By Anne-Marie L. Storey, Esq.
This is the first in what will be a short series of email blasts addressing various issues caused by winter/inclement weather. This blast will focus on payment of wages when an employee misses time from work.
For non-exempt employees, an employer is only required to pay for hours actually worked. Therefore, if an employee chooses not to come into work or the business is closed due to bad weather, nonexempt employees do not have to be paid for the time missed. This general rule may be different in the event an employer has agreed to a “report-in pay” arrangement under which a nonexempt employee is provided with pay in the event they come to work but are sent home.
The rules are different for exempt employees. Generally, exempt employees are paid on a salary basis which means they receive the same set amount per week not subject to fluctuation or deductions. In applying this general rule to weather-related missed time, the Department of Labor has generally enforced the following rules:
1. If the employer closes the business due to bad weather for any portion of a week (but not an entire week), a salaried exempt employee must be paid their regular salary for the entire week.
2. If the business is closed for the entire week due to weather, and the exempt employee does no work that week, the employee does not have to be paid for the week.
3. If the business is open but an exempt employee chooses not to work for a full day due to bad weather, this is considered by the DOL to be an absence for a personal reason and a deduction for a full missed day of work can be made.
4. If the business is open but an exempt employee works only a partial day due to bad weather, the employee must be paid for the entire day. So, for instance, if an exempt employee is late to work or leaves work early because of weather-related transportation problems or because school is closed, she must be paid her regular full day’s pay.
In determining whether an exempt employee has worked any part of a day, keep in mind that work does not just include what is done in the physical workplace. To the contrary, “work” will likely also include activity performed from home and/or from any remote computer-related device and that time has to be factored into the decision as to whether pay is due.
Also remember that although an employer is required to pay exempt employees in the circumstances noted above, the employer is permitted to require such employees to use any accrued time to cover those absences. If the exempt employee does not have enough accrued leave to cover the absence, though, the employer is not permitted to deduct the difference from the exempt employee’s salary.
The next blast will address workers’ compensation issues raised by injuries incurred in inclement weather.
These materials have been prepared by Rudman Winchell for educational purposes only. They should not be considered legal advice. The transmission of this information to you is not intended to create a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel. You should not send any confidential or private information to Rudman Winchell until a formal attorney-client relationship has been established, in writing.