It has been a long, cold winter this year with the Polar Vortex and record snowfall in many parts of the country. And while spring will arrive eventually, winter’s not over yet. (Remember what they say about March coming in like a lion….)
Sometimes, severe weather conditions lead employers to make the decision to shut down their business operations for all or part of a day. What are employers’ obligations with regard to payment of wages when employees are sent home early, or told to stay home all day, because of inclement weather? This question raises issues under both federal and state law, and the answer is not always easy.
When it comes to non-exempt employees, the Federal Fair Labor Standards Act (“FLSA”) only requires that these employees be paid for hours actually worked. State statutes that provide for “report-in” pay, may come into play in cases where an employer decides to shut down its operations for part of a day and send employees home. For example, Massachusetts regulations (455 C.M.R. § 2.03(1)) provide that when an employee who is scheduled to work three or more hours reports for duty at the time set by the employer, and that employee is not provided with the expected hours of work, the employee shall be paid for at least three hours on such day at no less than the basic minimum wage. New Hampshire’s “report-in” law, RSA 275:43-a, requires that employees who report to work at the employer’s request be paid no less than two-hours pay at the regular rate of pay.
For exempt employees, the FLSA does not permit employers to make deductions from employees’ pay for partial day, or even whole day closures. The only exception is when the employer’s facility is shut down for an entire week, and exempt employees do not perform any work at all during the shutdown. But, if exempt employees are still checking emails and making phone calls from home while the office is closed, they would still be entitled to be paid. For most employers, there will be a duty to pay exempt employees as usual during a weather-related shutdown.
Employers may permit, or even require, employees to use accrued paid time off in connection with inclement-weather closings. However, if employees don’t have enough accrued paid time off, employers cannot make up the difference by charging against future unearned vacation time unless this is specifically provided for in the company’s vacation policy.
It always makes sense to prepare for a storm, whether that means checking to make sure that you have enough milk in the refrigerator, or reviewing your payroll and personnel policies for compliance with applicable federal and state laws.