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Ask the Hotline | Compensation and Snow Days

December 3, 2018
Question
 
We always seem to have questions from our employees about how and when to pay them if we close the company due to winter weather conditions. It would be helpful if you could walk through some of the more common situations.
 
Answer
 
These questions come up regularly. Here are the most common along with the answer to question “pay or no pay?”
 
Most of these issues are governed by the Fair Labor Standards Act (FLSA) though some are also impacted by the Massachusetts wage and hour regulations. 
 
Q. The office opened but one of my exempt employees couldn’t get to work because of bad weather. 
 
A. No need to pay, provided the employee does not work at home. An employee who is absent due to inclement weather is absent for personal reasons (one of the recognized exceptions to the FLSA requirement that exempt employees be paid for any week in which they perform any work) and may be placed on leave without pay for the full day if the employee fails to report to work due to such circumstances as a heavy snow day. (see FLSA regulation 541.602, (b) (1)). 
 
The key question will be whether the exempt employee(s) does any work at home. Given how common it is for companies to enable or allow employees, especially exempt ones, to work remotely it will be challenging to enforce this situation without having clarified it prior to the snow storms occur. 
 
Q. The office opened but an exempt employee couldn't make it in because of bad weather. The employee worked at home for a few hours and spent the rest of the day shoveling snow. 
 
A. Must be paid. This is exactly the opposite of the situation covered in question 1 above. Work at home is work. Any time an exempt employee misses less than a full day of work because of snow or other adverse weather conditions, salaries may not be docked. Section 541.602 makes it clear that an exempt employee’s pay may not be reduced due to quality or quantity of work. Therefore, if the exempt employee performs some work that day, such as shoveling, the employee must be paid.  
 
Q. May an employer require an exempt employee to use vacation or accrued leave if the exempt employee only works a partial day in this situation?
 
A. Yes according to a US Department of Labor (DOL) Opinion Letter from 2005 (FLSA 2005-7). The relevant letter is here. https://www.dol.gov/whd/opinion/FLSA/2005/2005_01_07_7_FLSA_PaidTimeOff.htm.
 
Q. The company opened today but an exempt employee couldn't make it in due to bad weather. After spending 90 minutes waiting for a bus, the employee gave up and went home. 
 
A. It depends. While commuting is rarely working time, if the employee did more than minimal work (i.e.
more than a “de minimis amount of work”) while waiting for the bus (e.g. checking emails, making phone calls), the employee is working and must be paid.
 
Q. Work opened today, but a nonexempt employee was unable to arrive due to the bad weather. 
 
A. The general rule is that a nonexempt employee does not need to be paid for any hours she or he does not work. The company may allow the nonexempt employee(s) to use vacation, sick, or personal time to receive pay for the day. Any employer choosing to have such a policy should make sure to document in writing the employee’s use of paid time off so there are no disputes later. 
 
Q. Work opened today but a nonexempt employee couldn't make it in because of bad weather. After spending two hours trying to commute the employee gave up and went home.  
 
A. No need to pay the employee for commuting time as it is not working time. However, see the question above pertaining to the use of paid time off.  Also, if the employee does more than a de minimis amount of actual work while trying to commute, the employer must pay for the time worked. In cases such as this it will be useful to determine how to track the time worked to minimize any risk of conflict over work time later and the possibility of unpaid overtime
 
Q. We are closing early due to bad weather. Pay for nonexempt employees? 
 
A. It depends. Employees must be paid for any hours actually worked at their standard hourly rate.  The Massachusetts reporting pay law may apply as well. It requires that any employee who reports to work on time and is sent home early due to the employer’s decision, must receive up to three hours of pay at the minimum wage. For example, if the employee works one hour and the company closes, the employee would be owed one hour of straight time and two at minimum wage, though according to our annual survey, most employers will pay three or four hours at the employee’s regular pay rate.
 
Q. We closed early today but some essential nonexempt personnel were asked to stay later to help shut down the machinery. I know I owe them for extra time worked but must I pay them for the difference between their normal commute time and the extra time it takes them to get home in the bad weather? 
 
A. No, it is still just their commute home.
 
Q. The office closed hours ago because of bad weather, and some non-exempt essential personnel were asked to stay later. They are now stuck here for the night due to the storm. 
 
A. If the employees are completely relieved from duty and are able to use the time for their own pursuits (there is food available, relatively comfortable places to sleep, a television or other entertainment) then you do not need to pay them for that time.
 
If they are relieved from duty but there is absolutely nothing they can do with their time, not even somewhere to sleep (besides the hard floor), then an argument can be made that you must pay. Even then, you would only have to pay the minimum wage, not the employee's regular wage rate.
 
Please call the AIM Employer Hotline at 1-800-470-6277 with questions about this or any other HR issue. Access to the Hotline is for members only.
 
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