Winter Storms Bring Flurry of Wage and Hour Questions



​As winter deepens, employers should refamiliarize themselves with wage and hour rules that apply to nonexempt and exempt employees during winter storms.

"Winter weather is stressful. Plan for how you're going to pay to minimize the strain of the moment," said Jesse Dill, an attorney with Ogletree Deakins in Milwaukee. "Generally, employers only have to pay nonexempt, hourly employees when they work, whether remotely or at the facility." On the other hand, exempt employees who are on a salary must be paid for the full week, even if they must miss days due to bad weather, unless a deduction rule applies.

Nonexempt Employees

The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees for all hours worked. Therefore, if an office or plant is closed and a nonexempt employee doesn't perform any work, no pay is due, said Sarah Pawlicki, an attorney with Eastman & Smith Ltd. in Toledo, Ohio.

Nonetheless, employees who aren't working but are on call must be paid in certain circumstances, Dill noted. This could be the case if an employer directs employees to remain onsite to wait out the inclement weather and possibly return to work, he said.

Another exception is nonexempt employees who are paid on a fluctuating-workweek basis under the FLSA. "Such employees normally must be paid their full fluctuating-workweek pay for every workweek in which they perform any work," said Megan Janes, an attorney with Fisher Phillips in Fort Lauderdale, Fla.

If nonexempt employees do any work, they must be paid for the time worked, even if they had been directed not to work., Pawlicki said. Disobeying the employer's instruction not to work may be a disciplinary issue.

Because the FLSA doesn't require employers to provide paid time off, employers are permitted under federal law to require employees to use available vacation time or paid time off due to inclement weather. "The reason an employer may want to do this is to make sure the employee does not have a loss in pay for the week," she said.

However, many employees may have already planned how they want to use their paid time off. Requiring them to use it at a time they did not want may hurt employee morale, Pawlicki added.

Exempt Employees

Exempt employees who are otherwise available for work but can't because the office or plant is closed must be paid their regular salary if they perform any work in that workweek, Pawlicki said.

"Exempt employees can be required to work from home even if the office or plant is closed, provided that the exempt employee has work that can be done from home," she said. Even if exempt employees are in positions that do not typically work from home, many employers require exempt employees to take online training or attend online meetings to effectively use this time because the workers must be paid anyway, she said.

If the exempt employee has vacation time available, the FLSA allows the employer to charge the missed days to available vacation. The accrued paid time off may be reduced in full-day or partial-day increments, said William Horwitz, an attorney with Faegre Drinker in Florham Park, N.J., and New York City.

Yet, if the exempt employee doesn't have any or enough available vacation time, the exempt employee must receive the full salary, Pawlicki said.

An employee may become disgruntled when one exempt employee is required to use a vacation day and then finds out other exempt employees who used all of their vacation time still were paid for the inclement weather day, she noted.
If a company requires that employees use paid time off for a closure, and the weather turns out to not be as bad as expected and the company could have stayed open, this also may lead to morale problems.

"Before requiring exempt employees to use their accrued time off, an employer should check with counsel regarding applicable state and local laws," Horwitz said.

Deductions from the salaries of exempt employees for full-day absences for personal reasons are allowed under federal law. "So if an office is open but the exempt employee chooses to stay home for personal reasons, under federal law, a full-day deduction would be authorized," said Justin Barnes, an attorney with Jackson Lewis in Atlanta. "However, it could certainly impact employee morale if an employee does not come to work because they are not comfortable driving in inclement weather and then their pay is reduced."

The legality of a full-day deduction in such circumstances assumes that the exempt employee performs no work during the day while away from work for personal reasons, noted Robert Hingula, an attorney with Polsinelli in Kansas City, Mo. If the exempt employee performs any work from home, the worker is entitled to full salary for that day.

Should the employee work from home only during some of the workday when the office is open and take some time off, the employer might deduct from the employee's paid-time-off bank for the time not worked. Regardless, the employee must still be compensated for the entire day of work—even if the employee does not have enough paid time off to cover the partial day, he added.

Communication

Inclement weather policies should be in the employee handbook and discussed in e-mails or other written communications to employees, reminding workers about what to expect as inclement weather approaches, Janes said.

Hingula said an inclement weather policy should adequately address how the company handles closings and include topics relating to:

• The amount of notice employees may receive about the company's decision to close operations.
• How the employees will be notified—for example, are workers to call into a hotline or will they receive a text?
• How employees will be compensated during the closing.
• Whether remote work will be expected or prohibited.
• Whether employees may use or be required to use their paid time off during the closing.

SHRM resource hub page:  Weather and Natural Disasters