Discrimination Due to Heat-Related Time Off?

Steven Cesare, Ph.D.

A business owner from Florida called me the other day to discuss employee time off due to a recent heat wave hitting her part of the state. After four consecutive days of temperatures above 90 degrees and humidity above 90%, the business owner had a team meeting with her field operations staff and told them they were going to be sent home due to the extreme weather, and that they were not to return to work until the following Monday.

Just to be clear: The non-exempt field employees were not paid for this time off, though the exempt employees (e.g., Account Managers) did receive their standard salary for that entire week. This situation is the mirror image of an unexpected rain event. In such cases, most business owners inform their non-employees to not come to work when it is raining; a condition that provides unpaid leave for non-exempt employees, and paid time for exempt employees. Naturally, this type of decision, though ultimately at the discretion of the business owner, should be summarized as part of the company’s Inclement Weather Policy found within the Employee Handbook.

Back to the original story. After the Florida business owner informed her field operations team that they were not to report to work until Monday, she then relayed that same decision to the office staff. Once the office staff heard the owner’s decision, one office employee asked if the same decision was applicable to them. The owner said her decision only applied to the field staff in that their work was distinctly performed outside in the extreme heat, while office employees routinely complete their work assignments in an air conditioned building. At that point, the office employee told the owner she was going to call a lawyer and file a discrimination lawsuit against the business owner for treating office employees differently than field employees.

That’s when the business owner called me.

Legally, business owners have the discretion to allocate work time as they desire, as long as there is no direct or indirect discrimination against a protected class of employees. In specific: They can set employee work schedules, require employees to work overtime, mandate when employees must take vacation time, deny employee requests for vacation time, and miracle of miracles, even send employees home when the business owner wants to do so.

As I shared with the business owner, based upon the facts conveyed to me, there was clearly no discrimination in this instance; needless to say, she was sincerely relieved. Moreover, I informed the business owner that if the office employee wanted to take time off from work, she should proceed with the normal administrative request process.

With our conversation coming to a close, out of rote obligation I reminded the business owner to check her EPLI policy to see if it contains FLSA coverage, that she conduct monthly payroll audits (e.g., hours worked, overtime, time off usage), and that she should not respond in any retaliatory fashion to the identified litigious office employee.

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