In the wake of Hurricane Sandy and the destruction that followed, many employers along the East Coast may be struggling with wage and hour issues and fielding questions from employees on paid time off. When businesses close early, open late or shut down due to severe weather such as a hurricane, tornado, snow storm or other natural disasters employers face a number of employment law concerns. Questions from employees, such as Will I get paid for the time the office was closed because of the hurricane? may not have a straightforward answer.
If your business doesnt have a formal inclement weather policy in place, how you pay employees will depend on whether they are exempt or non-exempt workers under the Fair Labor Standards Act (FLSA). The FLSA requires only that employers pay hourly, non-exempt employees for the time they've actually worked. If a non-exempt employee misses work, he or she is not entitled to payment for the missed time.
However, exempt employees must be paid their same salary:
- Cutting exempt employees' salary due to hours worked makes them look more like hourly workers.
- If an exempt employee is ready, willing and able to work, his or her salary cannot be reduced because work is not available.
- In the alternative, you can reduce the exempt employee's vacation or accrued time off (if you have a policy on this in effect).
Example: You send everybody home two hours into the day due to a blizzard and the offices remain closed the next day. Mary, an exempt employee, makes $52,000 per year in salary and has five days (40 hours) in her paid time off (PTO) bank:
- You can require exempt employees to use vacation or PTO for the time the office was closed.
- You can require Mary to use 14 hours of PTO (6 hours of PTO for the first day of the blizzard and 8 hours of PTO for the day after the blizzard when the office was closed) which does not endanger her exemption.
- Mary still receives her salary of $1,000 for that week.
Wage & Hour, HR and Workplace Resources
Many experts have been writing about this subject since we learned of the impact Hurricane Sandy would have on the East Coast. Weve gathered some of the best information on the subject of compensating employees for time off during inclement weather and listed these wage and hour resources below.
- In a Client Alert from Seyfarth Shaw LLP, If We Close Because Of The Storm, Whom Do We Have to Pay and How Much?, their attorneys discuss the effect of a storm closure on compensation requirements and how they vary by different types of employees and also by state.
- In a TLNT article last week by John E. Thompson of Fisher & Phillips, Wage-Hour and Other Workplace Challenges After Hurricane Sandy, he summarizes a number of federal Fair Labor Standards Act issues that typically arise following a natural disaster.
- In a 2010 article by Jon Hyman on Ohio Employers Law Blog, Do You Have a Severe Weather Policy?, he offers five suggestions for your workplace inclement weather policy, including how to handle issues such as attendance, wage and hour, and telecommuting.
- In a recently updated article by Duane Morris LLP on the Society for Human Resource Management (SHRM) website, When Disasters Strike: Pay, Leave and Related Issues, the firm discusses many of the pay and benefits issues that HR managers face during emergencies.
- In an article by Kara M. Maciel on the Wage & Hour Defense Blog, Hurricane Sandy Is About to Blow Our Way: Wage & Hour Implications for Employers, she details several FLSA points employers need to be mindful of for weather-related absences.
- In a Wage & Hour Opinion Letter from the U.S. Department of Labor, the DOL addresses the regulations on paying exempt employees when your office is closed for inclement weather. While this letter is several years old, the FLSA regulations have not changed on this issue.
Whats Your Companys Inclement Weather Policy?
If your company doesnt have an inclement weather policy, now would be the perfect time to create one and prepare yourself should your business need it in the future. This severe weather policy should be included and communicated to employees through your employee handbook. Below is a free sample policy we received from an outside HR and benefits expert that you can customize to match the policies for your business.
Review Your Employee Handbook Policies on a Regular Basis
If your business hasn't reviewed or updated your employee handbook recently, now is the ideal time to do so. Download our free sample employee handbook and compare it to your current HR policy manual to see if you are missing some crucial guidelines and procedures for your workplace.