Archive for November 2012


November 9, 2012

The rules which apply to whether or not you have to pay your employees for whether related absences depends on whether they are considered exempt or non-exempt employees.

Most employees are considered non-exempt under the federal Labor Standards Act (FLSA) and are covered by the FLSA’s minimum wage and overtime pay provisions. Non-exempt employees generally must be paid only for the time they actually work. ImageTherefore, non-exempt employees who choose not to report to work during inclement weather conditions do not have to be paid under the FLSA for the time they do not work. The FLSA also does not require non-exempt employees be paid where the employer closes the organization due to inclement weather. Furthermore, nothing in the FLSA prevents non-exempt employees from choosing to use (or from employers requiring non-exempt employees use) available vacation days or personal days for weather-related absences.

While the FLSA does not require non-exempt employees be compensated for work missed due to inclement weather, employers should be aware that New York has a “reporting time pay” law. The “Reporting time pay” law (also referred to as “show-up pay” or “call-in pay” law) requires under certain circumstances for employees who report for work as scheduled or requested by the employer be paid for at least four (4) hours or the hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage. This means that if an employer requests or schedules non-exempt employees to work a full day and then, due to inclement weather, has to close after a short period of time, the employer may still have to pay the employees who reported to work for at least four hours at the basic minimum hourly wage.

Employers who operate outside of New York State should become familiar with the reporting time pay laws (if any) of the states in which they operate.

Exempt employees under the FLSA are generally those who work in bona fide executive, administrative or professional capacities, as well as certain computer employees and outside salesmen.  Most exempt employees are paid on a salary basis, meaning their compensation is regularly set regardless of the quality or quantity of the work performed. The rules for compensating exempt employees for weather-related absences differ depending on whether the absence is initiated by the employer or the employee.

Employer Remains Open and Employee Chooses Not to Report to Work.

Under the FLSA, if an employer remains open during inclement weather and an exempt employee chooses not to report to work, the employer can deduct from that employee’s salary for the full-day absence. Note that deductions can only be made for full-day absences.  If an exempt employee comes in late or leaves early due to inclement weather, the employer must pay the employee his/her full salary for that day. To that end, an employee who misses one and one-half days due to inclement weather can have one day’s salary deducted for the full-day missed, but no time may be deducted for the half-day missed.

Nothing in the FLSA prevents an employer from requiring an exempt employee to use vacation or other accrued paid time off when the employee misses full or partial workdays and the employer remains open for business. However, if the exempt employee does not have any accrued paid time off left and comes in late due to inclement weather, the employer must still pay that employee for the full day’s work.

Employer Closes Operations.

Where an employer chooses to close operations and the closure lasts for less than a full workweek, the employer cannot make deductions from an exempt employee’s salary for any time missed. An employer, however, does not have to pay employees for any full workweeks where the employer’s operations are closed due to inclement weather (although these circumstances are rare).

Even though the employer cannot make salary deductions due to unavailability of work where an exempt employee is “ready, willing and able to work,” the employer can require exempt employees use accrued paid time off when the employer closes work due to inclement weather.  If the employee does not have any accrued paid time off left or has a negative leave balance, the employer must still pay that employee’s salary for the day the employer closes.

Other Considerations

In addition to federal and state laws that govern employee compensation for weather-related absences, employers should consider any promises made in employee handbooks, employment contracts, or collective bargaining agreements. While wage and hour laws provide the minimum requirements for compensating employees for weather-related absences, an agreement between the employer and its employees can certainly provide employees with “more” (in other words, wage and hour laws operate as a floor, not a ceiling, for how an employee gets compensated for weather-related absences).

Lastly, employers that intend to require employees use accrued paid time off during weather-related absences should include a statement to that effect in their employee handbooks.

If you have any questions regarding the information provided above, please contact our firm.