The Weather Outside is Frightful; the HR Issues Don’t Have to Be: Compensation and Other Legal Issues When Inclement Weather Hits

by Meredith Jeffries

Many of our clients have snow in their forecasts this week, and may anticipate weather-related tardiness, absences, or closures. This Client Alert summarizes how applicable laws require you to handle employee compensation and other issues when Mother Nature doesn’t cooperate.

Inclement Weather Closings

Hourly employees (those who are “non-exempt” under the Fair Labor Standards Act) generally only need to be paid when they are working.[1] As such, unless your employee handbook or a collective bargaining agreement governing unionized employees provides for compensation in the event of a weather-related closure, you need not pay your non-exempt employees if they do not work when the office is closed.

Exempt employees, by contrast, must be paid their full salary for any week in which they incur absences caused by the company’s decision to close for inclement weather, if the absences occur during a workweek during which the exempt employee does any work, even if remotely. In some instances, where permitted by your vacation or paid time off policy, you may be able to require an exempt employee to utilize paid time off on days(s) you are closed due to inclement weather.

Whenever you close due to inclement weather, you should provide ample notice to your employees so that they do not venture out into bad weather unnecessarily. We recommend that you include this in an inclement weather policy, and remind your employees the day before any inclement weather is possible as to how you will alert them of your decision.

Absences and Late Arrivals Arising From Inclement Weather When Your Business is Open

Many of our clients, particularly those located where inclement weather is a common occurrence, will find it necessary from an operational standpoint to be open despite potentially hazardous weather conditions. This can create challenges for some of your employees with respect to issues such as travel and childcare.

As a matter of federal law, you can require your employees to report to work despite inclement weather. This means that, absent a policy, contract, or collective bargaining agreement to the contrary, you may discipline your employees for tardiness and absences due to inclement weather in the same manner you might discipline them for any other late arrival or unapproved absence. However, we would advise you to give that careful consideration. Some of your employees may commute from significant distances where the weather and roads are worse than where your business is located, and we encourage you to leave the decision as to whether or not it is safe to report to work to your employees. It is also advisable to communicate to employees, as part of a written inclement weather policy, that they should not report to work if they believe it unsafe to do so.

You are not required to compensate your employees if they elect not to come to work due to inclement weather on a day you are open. Non-exempt employees must be paid only for hours worked. For exempt employees, you may legally make deductions from their salary for full-day absences if you are open for business and they do not report to work, provided that they perform no work remotely during the absence. Exempt employees’ salaries should not be docked, however, for partial-day absences. In the alternative, you could elect to pay the exempt employee and deduct the applicable number of days from their accrued paid time off, provided that your PTO policy permits such deductions.

An inclement weather policy can be helpful in outlining how you will handle weather-related closings and absences for both exempt and non-exempt employees with respect to pay, use of PTO, and other issues, and can emphasize to employees that they should put safety first in determining whether to report to work when weather and/or road conditions become hazardous.

 

Meredith Jeffries is a Member of Alexander Ricks PLLC. Meredith has two decades of experience in the area of labor and employment law and provides comprehensive transactional, counseling, training, and litigation services with respect to all aspects of the employer/employee relationship.

 

[1] Under the FLSA, the majority of your employees are either “exempt” salaried employees, or “non-exempt” hourly employees. As we have indicated in prior Client Alerts, the Department of Labor has emphasized that remedying misclassification of workers is a significant priority for 2016. See, FLSA Alert.These categories become important when determining how inclement weather issues impact your compensation practices. If you have questions or concerns about whether your employees are properly classified as exempt or non-exempt under the FLSA, we can assist you with that analysis and ensure that you mitigate the significant financial risk that can arise from misclassifications.