Inclement Weather Poses FLSA Challenges

When work closes because of inclement weather, exempt and nonexempt employees are treated differently under the Fair Labor Standards Act (FLSA), management attorneys note.

If the company closes for weather-related reasons, nonexempt employees are not entitled to pay. “The employer can allow nonexempt employees to use accrued paid time off (PTO) to cover their absences. If PTO is not available, the time off is unpaid,” said Linda Horras, an attorney at Hinshaw & Culbertson in Chicago.

“There is nothing wrong with paying a nonexempt employee for time off due to bad weather,” she added.

The employer might, for example, provide a fixed number of paid inclement weather days, suggested Bill Allen, an attorney with Littler in Washington, D.C.

“That would be a benefit and an employee relations plus,” Horras said. “However, employers typically are not in the business of paying employees for time not worked. If such time is paid, it is not working time and not counted toward hours worked for purposes of overtime calculations.”

As for exempt employees, “the application of weather-related absences is more complicated,” Horras explained. “In the case where an employer is open for business but an exempt employee chooses to stay home, that employee is not entitled to pay for that day because he/she chose to remove himself from the workplace for personal reasons. If the employer has a PTO policy and the employee has accrued time, he can use the PTO to cover his absence. In the event there is no accrued PTO available, the employer can reduce the employee’s pay for the absence—in full-day increments—without violating the salary-basis” test of the FLSA.

“However, when the employer decides to close for weather-related reasons, the employee’s full salary must be paid for the week even though he may not have worked the full workweek,” she added. “In this scenario, the employee is available for work but it is the employer who has made the work unavailable to the employee.”

Peter Gillespie, an attorney with Fisher & Phillips in Chicago, also cautioned, “Employers should not make salary deductions from exempt employees for early departures or late arrivals caused by bad weather.”

Telework

Given modern technology, “employers should be mindful that exempt employees may still be able to work remotely on inclement weather days. In such situations, where an exempt employee works from home, full-day salary deductions should not be made for any absences,” Allen remarked.

“Working from home is increasingly popular, but also increasingly problematic for employers to monitor and track,” Horras said. “As a matter of policy, unless there is a business reason for nonexempt employees to engage in work outside of the brick-and-mortar building, working outside the place of business should be prohibited.

“There has been a rise in off-the-clock wage claims and when employees are working from home, their work and, more importantly, time spent on that work, is difficult to track as is required under the FLSA and many state wage and hour laws,” she explained. “In the age of instant access to e-mails, employer networks, voice mail and the like, the employer should have a strict policy against working outside the office for its nonexempt staff or risk off-the-clock wage claims.”

However, David Kurtz, an attorney with Constangy, Brooks & Smith in Boston, indicated that telecommuting might be an option for nonexempt employees, observing that, “employers collectively lose billions of dollars each year in lost revenue due to weather-related closures and slowdowns. Telecommuting is a way to help stem the tide of lost productivity.”

He said the issues related to bad-weather telecommuting are “largely similar to those for standard telecommuting,” including whether there is a mechanism for nonexempt employees to track their hours remotely.

The Americans with Disabilities Act may come into play as well. Rachel Reingold-Mandel, an attorney with Ogletree Deakins in Boston, observed that there may be disability-related requests, such as permission to telework, during inclement weather from people with mobility impairments who are having special difficulty getting to work.

“Of course, certain jobs necessitate reporting to work in bad weather,” Katharine Parker, an attorney with Proskauer in New York City, said. “Emergency responder, police, medical, transportation, news jobs are the most obvious examples of these sorts of jobs.”

Weather Emergency Policies

“Many employers do not have written policies or plans in their employee handbooks for emergency situations, such as inclement weather emergencies or other disaster-related emergencies,” Allen observed. “Preparing for such emergencies and communicating in advance with employees regarding the contours of the company‘s plan and policies is a better practice. Such a policy should emphasize that the employee’s safety is paramount in making decisions whether to report to work during inclement weather where the workplace has not been closed.”

He added that “The company should establish written procedures for employees to give notice if they cannot make it to work due to weather-related or other emergency conditions, and publish such procedures in an employee handbook or other policy statement.”

Making Up Missed Time

The policy also should discuss if nonexempt employees will be permitted to make up missed time.

“Employers who have hourly workforces may want to readjust schedules to address situations when a business is being shut down for a day or two for bad weather, possibly by allowing employees to work longer shifts, different shifts or on weekend days, in order to make sure that hourly employees are working consistent hours,” Gillespie said. “Before making these types of adjustments, employers should keep in mind break rules, mandatory days off requirements and daily overtime requirements, which may vary by state, in order to avoid possible legal violations or unexpected overtime obligations.”

“Early departures/closures and later arrivals/openings might have a particular impact on nonexempt employees, as lost time equals lost pay,” Kurtz noted. “Any employee who reports to work for a short day might be frustrated that the employer didn’t simply close, rather than require the employee to commute through bad weather for a short day. For especially short days, with respect to nonexempt employees, they may be entitled to ‘reporting pay’ for more time than actually worked.”

For example, Parker noted that “in New York, if an employee reports to work at the request or permission of the employer, the employer must pay the employee for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less. New Jersey, in contrast, only requires an employer to pay for at least one hour.”

One Size Does Not Fit All

Parker added, “Employers need to consider whether certain jobs or locations require a different policy than others.”

In deciding whether to close the office, Reingold-Mandel said, “Safety comes first. Avoid bad P.R. Some states or localities may have regulations about emergencies being declared. Keep a close eye on them.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.