by Susan E. Prince, J.D., BLR Legal Editor
One big problem with snowstorms is how to handle pay questions under the Fair Labor Standards Act (FLSA). If a company opens an hour late because of a snowstorm, should an employer pay employees who show up earlier because they didn't hear the announcement? What time does the workday end when employees are given the option to go home because of inclement weather? What do the payroll laws require if the company is closed for an all day snow day?

An employer should establish a policy covering emergency closing pay options before the need occurs, ensure that all employees are notified of the policy, and implement it consistently. To some degree, wages are governed by the FLSA. Many states have payroll laws covering this issue as well.

Nonexempt employees. Under the FLSA, employers are not required to pay nonexempt, hourly employees who report for work and then are told that there is no work for them. Neither are they required to keep employees working for any specific number of hours or to pay them for hours they were assigned to work, but didn't.

Even so, most employers pay for time not worked when an emergency or snow day forces an early closing. However, if the plant is being kept open and employees are merely permitted to leave early at their option, hourly workers are usually not paid for the time off.

If employees show up and are asked to stay until the situation is assessed, they must be paid even if there is nothing for them to do. On days that the facility does not open (and especially when notice has been given) the FLSA does not require that hourly employees be paid.

Exempt employees. The payroll laws concerning exempt employees are more complicated. The FLSA does not require employer-provided vacation time. Where an employer has proposed a bona fide benefits plan, it is permissible to substitute or reduce the accrued leave in the plan for the time an employee is absent from work, even if it is less than a full day, without affecting the salary basis of payment, if the employee still receives in payment an amount equal to the employee’s guaranteed salary. However, an employee will not be considered to be paid on a salary basis if deductions from the predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business.

Therefore, if the employer closes the office because of a snow day or other disaster for less than a full workweek, the employer must pay the employee’s full salary even if:

• The employer does not have a bona fide benefits plan;
  
• The employee has no accrued benefits in the leave bank;
  
• The employee has limited accrued leave benefits and reducing that accrued leave will result in a negative balance; or
  
• The employee already has a negative balance in the accrued leave bank.

Since employers are not required under the FLSA to provide any vacation time to employees, there is no prohibition on an employer giving vacation time and later requiring that such vacation time be taken on a specific day(s). A private employer may direct exempt staff to take vacation or debit their leave bank account in the situation presented above, whether for a full or partial day’s absence, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account or has a negative balance in the leave bank account still must receive the employee’s guaranteed salary for any absences occasioned by the employer or the operating requirements of the business.

If the employer’s offices remain open during inclement weather or other types of disasters, and an employee is absent for 1 or more full days for personal reasons, the employee’s salaried status will not be affected if deductions are made from the employee’s salary for such absences. An employee who is absent because of inclement weather, such as because of transportation difficulties, is absent for personal reasons. A private employer may require an exempt employee who fails to report to work to take vacation or make leave bank deductions without jeopardizing the employee’s exempt status. When the office is open, an exempt employee who has no accrued benefits in the leave bank account does not have to be paid (i.e., may be placed on leave without pay) for the full day(s) he or she fails to report because of such circumstances as a heavy snow day.

Susan E. Prince, J.D., is a Legal Editor for BLR’s human resources and employment law publications. Ms. Prince has over 10 years of experience as an attorney and writer in the field of human resources and has published numerous articles on a variety of human resources and employment topics, including compensation, benefits, workers’ compensation, discrimination, work/life issues, termination, and military leave. Ms. Prince also served as an expert on several audio conferences discussing the 2004 changes to the federal regulations under the Fair Labor Standards Act. Before starting her career in publishing, Ms. Prince practiced law for several years in the insurance industry and served as president of a retail sales business. Ms. Prince received her law degree from Vermont Law School.

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