“It reminded me of what Dad said after every snail’s crawl home from Albany when snow hit. “It’s New York, people. It’s winter. We get snow. If you aren’t prepared to deal with it, move to Miami.”― Kelley Armstrong, Dangerous
Like it or not, the winter is upon us, and around here winter usually means snow is on the way. Since we’re not moving to Miami, we have to deal with it. Part of dealing with it in HR is answering the question that always comes up when snow days arrive: Do we have to pay employees for snow days? For inclement weather in general, the answer depends on a number of factors, including whether the office is closed, the status of the employee in terms of being exempt or non-exempt from overtime pay under wage and hour laws, and whether the employee actually performs any work during the snow day.
- Snow Pay for Non-Exempt Employees: No Work, No Pay
The Fair Labor Standards Act (FLSA) is the federal wage and hour law that covers employee pay, including minimum wage and overtime, and governs the question of in which situations employees must be paid for time missed at work because of bad weather. For employees who are not exempt from the overtime provisions of the FLSA (commonly referred to as “hourly” employees) , the answer is clear: Absent an employer policy or agreement to the contrary, those employees do not have to be paid for any time they did not work, regardless of the reason. This also holds true under New York law.
Despite this, to be competitive, we find that some larger employers elect to pay non-exempt employees for a half-day or more, even if those employees are only at work for a few hours. Some choose to pay employees for all hours missed because of an office closing due to poor weather. Others choose to allow employees to use accrued paid time off during an office closure. However, again, these payments are not required by law and are entirely up to company policy. Ultimately, the law regarding non-exempt employees is simply that absent a company policy or agreement to the contrary, they only need to be paid for time in which they actually perform work.
- Snow Pay for Exempt Employees: It Depends
Unlike hourly non-exempt employees, the question of whether exempt employees who miss work because their employer was closed or the weather prevented them from coming into the office should be paid is somewhat complicated.
Office is Closed: Pay Full Week Unless Closed for a Full Week
Assuming that you have already consulted with experienced labor counsel and properly determined that the particular employees are exempt under FLSA and NY law, FLSA regulations require that an exempt employee receive their full salary for any week in which they perform any work, regardless of how many hours or days they actually work. An exception exists where the employee performs no work during an entire week. Therefore, if the office is closed due to poor weather (or other emergency), the employer must pay all exempt employees their full salary and must not deduct any pay for time not worked. FLSA regulations provide that if exempt employees are “ready, willing and able to work, deductions may not be made for when work is not available” [29 C.F.R. § 541.602(a)]. Again, the only exception to this is where the office is closed for an entire workweek, thereby enabling the employer to deduct the entire workweek from the employee’s pay.
According to U.S. Department of Labor opinion letters (USDOL), established bona fide company policies may require exempt employees to use paid leave time (personal, sick, vacation) for the missed days when the office is closed (U.S. Department of Labor Opinion Letter FLSA2005-41) (*New York City’s Paid Sick Leave Law likely prohibits requiring employees to use paid sick time in this manner). However, if the employee has no accrued leave, they must “still receive the employee’s guaranteed salary for any absence(s) occasioned by the employer or the operating requirements of the business.” In short, snow days become paid days off from work for those exempt employees without accrued paid time off.
Office Stays Open: Deduct Full-Day Absences
On the other hand, if the office stays open, but the employee does not make it to the office due to bad weather or related transportation issues, deductions may be made from the employee’s pay for each full-day absence. This is because the USDOL deems such absences to be “personal” in nature such that a deduction may be made for any full day missed without jeopardizing the exemption (DOL Opinion Letter FLSA2005- 46). However, in cases where exempt employees work less than a full day due to bad weather, the employee must still be paid as if a full day was worked, because salary deductions for less than full-day absences are prohibited under the FLSA (Id.). Nevertheless, in the case of an exempt employee not reporting to work when the office is open, or working less than a full day, if the employee has accrued paid leave, the employer may require that it be taken (DOL Opinion Letter FLSA2005-41).
There you have it. Now you can weather the impending flurry of employee questions regarding snow day pay and not feel like you’re skating on thin ice!
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