A Winter Wonderland Is Predicted for Tomorrow: Do You Have a Plan?
With another blizzard predicted to start this evening, I wanted to pass along some information about winter weather policies. I have received a number of questions about these policies over the past few weeks: must I pay employees if the company is open? What about if the company is closed closed? Must employees be paid if the boss stays home? What is common practice?
As is often the case, there are both legal and business considerations. From the legal perspective, start by considering whether the:
(1) employer is open for business
(2) employee is exempt or non-exempt from overtime
(3) employer was open for business … but closed during the workday
THE LEGAL CONSIDERATIONS
Exempt Employees — The Company Is Open for Business:
The issue here is that you do not want to risk losing an employee’s exempt status by docking the employee for time missed due to weather-related absences. The good news for employers: according to the Department of Labor, “if an employer remains open for business during adverse weather emergencies, the employer may make deductions, for full-day absences only, from the pay of an otherwise exempt employee who chooses not to report for work for the day(s) because of the adverse weather emergencies.” Under the Fair Labor Standards Act (FLSA), the employer may treat any such full-day absence(s) as being for “personal reasons.”
Note that employers cannot deduct for less than a full day’s absence without jeopardizing the employee’s exempt status. For example, if an exempt employee is absent for one and a half days due to adverse weather conditions, the employer may deduct only for the one full-day absence, and the employee must receive a full-day’s pay for the partial day worked.
Exempt Employees — The Company Is Closed for Business:
The Department of Labor takes a different position when the employer closes for less than a full workweek due to weather-related conditions. In those cases, the employer must pay an exempt employee “the full salary for any week in which the employee performs any work without regard to the number of days or hours worked,” because “deductions may not be made for time when work is not available.”
Here’s the rub: you can require an exempt employee to use PTO, — after all, there is no requirement that employers grant PTO, and unless your company has a policy to the contrary, employers may dictate when employees use their PTO. Query, however, whether this is a sound business judgment. In the event that PTO is unavailable, employers must pay the exempt employee or risk losing the employee’s exempt status.
Non-Exempt Employees — The Company Is Open or Closed for Business:
According to the Department of Labor, the FLSA “does not require employers who are unable to provide work to employees due to a natural disaster to pay non-exempt employees for hours the employees would have otherwise worked.”
Non-Exempt Employees – The Company is Open for Business…But Then Closes
In Massachusetts, things change for non-exempt employees when the non-exempt employee (1) is scheduled to work three or more hours; (2) reports to work on time and is ready to work; and (3) is sent home by the employer before his or her scheduled hours have concluded. 455 CMR 2.03(1). In such cases, the employer must pay the employee for at least three hours at no less than $8.00 per hour.
Here’s an example. Let’s say the company is open for work, but at 9:30 a.m., management decides to close the company due to an impending storm. The employer must pay any non-exempt employee who has arrived at work at his or her regular rate for the time worked, plus minimum wage for the remainder of three hours. Again, however, query the impact on morale if the employer chooses not to pay the employee for the full day.
THE BUSINESS CONSIDERATIONS
Often times, the law is the floor and employers provide more to their employees than that to which they are legally required. Providing paid-time-off is one such example. Another is paying employees when the employer shuts down due to weather or other natural disasters. For morale reasons, most of the employers with whom I work take the following approach – and do not distinguish between exempt and non-exempt employees:
- Require employees to use PTO if the employer is open for business but an employee cannot (or does not) come to work
- Pay employees their regular rate if they are scheduled to be at work during a weather-related business closing
- This means that during an office-closing, an employer would expect someone who works from home to continue working from home if able to do so (i.e. power has not been lost)
- The employer would not credit employees vacation days or other PTO if the employee previously was scheduled to be out of the office.
Of course, each employer must decide what makes most sense given their business environment and the economic realities that many employers are facing.
BEST PRACTICES FOR MANAGING SEVERE WEATHER COMMUNICATIONS
- The employer should strongly consider closing the office if the Governor or other local government official declares a state of emergency
- Human Resources should ensure that employee contact information is current, complete, and available
- An “office closing tree” should be developed. Starting with the ultimate decision-maker, the company should assign managers with the responsibility of notifying subordinates and employees if the office is closed or will be opening late
- Human Resources should ensure that those tasked with notifying employees about office closings or delayed openings have the employee’s home and cell phone number. Alternatively, it may be easiest to send a mass email to employees’ non-work email address.
- Notices about closings should be posted on the employer’s intranet. Alternatively, or in addition, the employer should maintain a severe weather hotline number that employees can call for up-to-date information about delayed openings or closures.
© Kurker Law Group LLC, 2011
The Kurker Law Group LLC is a litigation and employment law firm located in Concord, Massachusetts. Having spent years at a large law firm before founding KLG, Allyson Kurker has worked with a variety of clients, from Fortune 500 companies to family-owned businesses, and many in between. While Allyson’s clients are varied, her approach is consistent: understand the client’s business objectives; counsel clients so they can prevent employment disputes; find early resolutions when possible; litigate tenaciously when necessary. Allyson Kurker has been selected as an “Up and Coming Lawyer” by Massachusetts Lawyers Weekly, in conjunction with the Massachusetts Bar Association. This award is presented annually to 20 “lawyers who have been members of the bar for ten years or less, but who have already distinguished themselves in some way and appear poised for even greater accomplishments.” In November 2011, Allyson was honored as a “Rising Star” in employment law by Super Lawyers, a service that rates outstanding lawyers from more than 70 practice areas. No more than 2.5 percent of the lawyers in the state are named to this annual list.