Weathering the Storm

City Blizzard

With all the talk about weather, particularly the massive storm that recently hit the East Coast, it’s an opportune time to highlight how inclement weather can present “issues” in terms of managing human capital and/or responding to questions about how office closure affects compensation.  Although most issues created by weather-related office closures involve non-exempt employees, the reality is that employers can (and often do) inadvertently create compliance issues when they require, for example, all employees to use PTO when an office closure arises.  Read on to learn why that is not a good idea.

Family and Medical Leave Act

If the employee would have otherwise taken the entire week off on FMLA leave, then the snow day would likely be treated like a holiday and can be charged as an FMLA day.  If, however, an employee is using FMLA leave in increments of less than one week, the snow day or office closure should not count against the employee’s FMLA entitlement, unless the employee is expected to come to work.  29 C.F.R. Section 825.200(h).

Fair Labor Standards Act

Non-exempt employees only get paid for hours worked.  Therefore, if the office is closed for a snow day and the non-exempt employee does not work, the employee does not get paid.  However, if that employee works remotely, then the employee should get paid for that time.  So, ensure that either: (a) non-exempt employees are instructed not to work remotely; or (b) non-exempt employees who work remotely are reminded to accurately track their time. [Note: if a non-exempt employee in the first category ignores instruction not to work remotely, that employee still must be paid, but s/he may be disciplined for failure to follow direction]. Additionally, if a non-exempt employee is required to remain “on-call,” s/he must be compensated (unless the employee can use that time for their own personal benefit).

Exempt employees who performed any work during the week in which the office is closed for a snow day are entitled to receive full wages for the week.  If the exempt employee has accrued some paid time off, s/he may be required to use PTO for the snow day.  However, if the exempt employee has no accrued PTO, pay can’t be docked.  Deducting an exempt employee’s wages may convert that employee’s status to non-exempt, and expose the company to liability for overtime.