Do I Have to Pay My Employees When It’s Snowing?
Steven Cesare, Ph.D.
This time of year I frequently get asked questions regarding pay practices due to weather conditions (e.g., snow, ice, flooding) that effect business operations. The Fair Labor Standards Act (FLSA) addresses compensation issues related to business closure regardless of cause (e.g., inclement weather, hurricane, power outage, civil unrest). While certain nuances exist, three primary criteria must be considered when determining whether or not an employee should be paid during severe weather:
Business Operation – Was the company open or closed for business?
Employee Status – Is the employee classified as exempt or non-exempt?
Work Performed – Did the employee perform any work during that day?
Company is Closed
If a landscaping company is closed for an entire day, exempt employees must be paid even if they do not perform any work during that day. While the exempt employee’s pay cannot be docked due to business closure, the employer can require that a full-day (i.e., 8 hour) deduction be made from that employee’s personal leave (i.e., vacation) balances. However, if the exempt employee does not have sufficient leave balances (i.e., 8 hours) to substitute for a full-day of business closure, the employee must still receive full pay for that day; in this case, the company should draft a policy requiring the leave balance shortage be deducted from an employee’s future leave allocation or be treated as advanced leave.
If a landscaping company is closed for an entire week, and exempt employees do absolutely no work during that full week, they do not have to be paid for that week. Yet, exempt employees must receive a full-day’s pay for every day they perform any work-related activities (e.g., telephone, paperwork, email) beyond the de minimis standard. So, if a landscape company is closed for a week due to flooding, and an exempt employee makes work-related telephone calls from home, the exempt employee must receive a full day’s pay for each day any such work is performed.
Conversely, non-exempt employees do not have to be paid when a company is closed for an entire day. Thus, if a landscape company is closed for a full day due a snow storm, a non-exempt Foreman does not receive pay for that day. However, if that Foreman performs any work-related duties (e.g., telephone, paperwork, email) during that day of business closure, the Foreman must be paid only for the actual time worked. Depending upon company policy, the non-exempt Foreman may substitute available personal leave balances to receive compensation for that day. It should also be noted that a non-exempt Foreman who is paid on a salaried, not hourly, schedule, must be paid for that entire day.
Company is Open
If a landscaping company is open and an exempt employee cannot get to work due to bad weather, that employee’s pay can be docked in a full-day increment as long as the employee performs no work during that day. Parenthetically, it is important to note that commuting to/from work, in and of itself, is not considered compensable time; yet if the exempt employee conducts business-related telephone calls while driving to, though not actually reaching, the office, that employee must receive a full day’s pay.
For example, an exempt employee who fails to get to work due to severe weather and returns home, and performs no work-related duties that day, can be docked a full day’s pay. As stated previously, the employee must receive a full day’s pay if any work is performed beyond the de minimis standard while driving or at home that day.
Similar to the situation cited above, the employer can require that a full-day (i.e., 8 hour) deduction be made from that employee’s personal leave (i.e., vacation) balances. If an exempt employee does not have sufficient leave balances available, the employer can dock the exempt employee for a full day of pay and make no leave deductions.
The conditions are different for non-exempt employees in that they must only be paid for actual hours worked. If a landscaping company is open for business and a non-exempt employee cannot get to work due to inclement weather, the employer is not obligated to compensate that employee with a full day’s pay. The employer is only responsible for paying non-exempt employees for the time they spend performing any work-related duties during that day.
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