United States: Inclement Weather FAQs: Who Gets Pay For A Snow Day?

As winter progresses, employers may find themselves monitoring the weather and wondering how to handle numerous operational headaches. Should a worksite close? If so: when, and for how long? Who can work from home, and who must be paid for what time? The kids may be hoping for a snow day, but employers know that winter weather creates a host of complications, including dangerous commutes and school closings, as well as delivery and service delays.

In dealing with such disruptions, employers should be prepared to resolve payroll issues that stem from inclement weather. To that end, we review a few common weather-related wage and hour questions. In doing so, we are guided primarily by the federal Fair Labor Standards Act (FLSA), although state laws may come into play as well.1

Does the FLSA require employers to pay non-exempt employees if they cannot work due to the weather?

Under the FLSA, non-exempt workers must be paid only for the time they work. As a result, employers need not compensate non-exempt employees who are not working because of bad weather. Notably, it does not matter whether the absence is based on the employer's decision to close a worksite or the employee's decision to stay (or go) home. If the worksite is open, but the employee decides to stay home or to leave a shift early, the non-exempt employee does not need to be paid for the hours missed.

There may be exceptions during a storm for waiting time, or on-call time. The FLSA considers employees to be "on call" if they must remain on the employer's premises and are unable to use their time for their own purposes.2 Thus, for example, if employees are required to remain at a location that has lost power in case power returns, they should be paid for the time spent holding down the fort despite their inactivity.

Do other laws require compensation to non-exempt employees, even if they are not performing work during inclement weather?

Unlike the FLSA, state laws may require compensation to non-exempt employees in certain circumstances. "Reporting time pay" laws—found in several states as well as the District of Columbia—obligate employers to pay non-exempt employees who report to work as required or as requested by the employer, even if no work is then performed.3 These laws vary by jurisdiction, but typically they require employers to compensate employees who were scheduled to work a certain number of hours and then are not needed for any or all of the scheduled time.4 In California, for example, employers must compensate such employees for half of their scheduled hours, up to a maximum of four hours even if they do not work.

Some employers may also be bound by "secure" or "predictable" scheduling laws. A few localities, such as Seattle and San Francisco, have passed legislation requiring that employers provide employees with their schedules two weeks in advance of their shifts.5 Generally speaking, employers that alter work schedules must compensate employees both for hours added and hours lost. These laws also require employers to pay for hours that their employees are scheduled "on call," but are not utilized.

Most of these state laws include exceptions, however, that might apply in extreme-weather scenarios. For example, the California reporting time pay is required if public utilities fail (i.e., electricity, water, gas or sewer) or if the interruption of work is caused by an Act of God or another cause not within the employer's control, such as an earthquake. The Seattle ordinance also includes an exception for hours lost due to natural disaster or due to a loss of power or other utility service. Suffice it to say, however, that employers with locations covered by these laws should be aware of these requirements and carefully evaluate the applicability of any exceptions.

What about exempt employees? Are they paid if an employer shuts down its operations? Can they be required to use paid time off?

When an employer shuts down its operations because of adverse weather conditions for less than a full workweek, exempt employees must be paid their full salary.6 This rule also applies if exempt employees work only part of a day. Thus, if an employer decides to send staff home early due to deteriorating conditions, it may not dock exempt employees' pay. Indeed, if an employer deducts from the employee's salary in this situation, it risks losing the exemption applicable to that employee.

Nonetheless—and barring any state law, local ordinance, or overly restrictive company policy to the contrary—exempt employees may be required to use accrued leave or vacation time (in full or partial days) for their absences. While it might not be a popular move, an employer can direct exempt employees to take paid time off for the closure, pursuant to the employer's bona fide leave or vacation policy. If, on the other hand, an employee does not earn or does not have any available leave time, the employee is entitled to his or her full guaranteed salary if the employer decides to close due to weather.7

What if exempt employees choose to stay home, even though the business is open? Must they be paid, or must they use paid time off?

If an employer is open for business, an exempt employee who elects to stay home due to the weather is considered absent for personal reasons. In lieu of paying salary, an employer with a bona fide leave or vacation policy may require the employee to use his or her accrued paid time off to cover the absence. As long as it is permitted by state law, leave time in this circumstance may be taken in full or partial days.

If an employer has a leave policy, but the absent employee does not have a leave account balance, the employer is not obligated to pay the employee. The employer can place the employee on unpaid leave for the full day(s) that he or she failed to report to work for personal reasons. Employers should bear in mind that salary deductions for less than a full day's absence are not permitted, even though leave balance deductions are allowed for partial-day absences. As a result, if an exempt employee with no leave balance misses half a day, the employer must pay that employee his or her salary for the entire day, with no partial deduction for the absence. Meanwhile, an employee with a leave balance in the same scenario could be required to use half a day of paid time off to cover the absence.

What if employees work from home?

Some employees, exempt and non-exempt, may be able to perform some or all of their duties remotely. Employers should consider how to address situations where employees work from home during periods of inclement weather.

As noted earlier, non-exempt employees must be compensated for all time spent working. Accordingly, employers must pay non-exempt employees for performing any work remotely, even if the employee did not have express permission to work from home. Employers, moreover, may need to rely on employee self-reporting of hours worked in such a scenario.

Exempt employees, too, must be paid their regular salary in this circumstance. Even if an exempt employee spends only a few minutes working remotely, he or she must be paid the usual salary for the day and the workweek. In instances where a partial day is worked, the exempt employee can be directed to use appropriate leave time for the balance of the time, as discussed above.

Do an employer's obligations change if there is a declared state of emergency?

Generally speaking, no—an employer's obligations do not change if the state government declares a state of emergency. A few states, such as Delaware and Pennsylvania, offer some protections to employees who miss work during a state of emergency. Laws in these states, for example, prohibit employers from terminating or disciplining employees who elect to stay home during certain types of emergencies.8

How can employers prepare for unpredictable, but inevitable, weather disruptions?

No matter where an employer operates, it can expect Mother Nature to wreak havoc eventually, in one way or another. With that in mind, employers can take steps to prepare for the next unavoidable disruption.

  • Employers should review their existing policies concerning inclement weather to make sure they comply with the FLSA and pertinent state and local laws. Such policies should explain the employer's position on the use of leave time for weather-related absences. They might also stress the importance of safety and explain whether non-exempt employees can work from home.
  • Employers should consult with knowledgeable employment law counsel if they have concerns or questions about their pay practices, particularly about applicable state requirements or municipal ordinances.
  • Employers without written policies should consider implementing procedures to be followed in the event of natural or other disaster.
  • As storm seasons or particular weather patterns approach, employers should remind employees of the established protocols.
  • Employers should also be proactive and explicit about communicating procedures for inclement weather or other disruptions. Employers should ensure that employee contact information is current and readily accessible to staff responsible for notifying employees of closures or delayed openings. Employers should consider developing protocols for making and communicating such decisions.
  • Employers should also consider training payroll staff on these issues, such as how to handle reporting time pay, and ensure that timekeeping records are clear and accurate.

Footnotes

1 Of course, specific agreements between employers and employees might also be relevant, along with applicable policies or collective bargaining agreements.

2 See, e.g., 29 C.F.R. §§ 785.14, 785.15, 785.17.

3 Reporting time pay laws have been enacted in California, Connecticut, D.C., Massachusetts, New Hampshire, New Jersey, New York, Oregon (as to minors only), and Rhode Island.

4 Christopher Kaczmarek, Reporting Time Pay: A Wage & Hour Winter Wonderland, Littler Insight (Jan. 6, 2011), http://www.littler.com/reporting-time-pay-wage-hour-winter-wonderland.

5 Doug Smith, Seattle City Council Approves Secure Scheduling Ordinance, Littler Insight (Sept. 20, 2016), http://www.littler.com/publication-press/publication/seattle-city-council-approves-secure-scheduling-ordinance; Michael Brewer, et al., San Francisco Ordinance Imposes New Burdens on 'Formula' Retail Employers, Littler Insight (Dec. 9, 2014), http://www.littler.com/san-francisco-ordinance-imposes-new-burdens-formula-retail-employers.

6 29 C.F.R. § 541.602(a) (explaining that deductions may not be made when work is unavailable at the employer's instruction); see U.S. Dep't of Labor, Wage and Hour Div., Opinion Letter FLSA2005-46 (Oct. 28, 2005), https://www.dol.gov/whd/opinion/FLSA/2005/2005_10_28_46_FLSA.htm (stating that exempt employees must be paid where "the employer closes operations due to a weather-related emergency or other disaster for less than a full workweek"); U.S. Dep't of Labor, Wage and Hour Div., Opinion Letter FLSA2005-41 (Oct. 24, 2005), https://www.dol.gov/whd/opinion/FLSA/2005/2005_10_24_41_FLSA.htm.

7 If state law and the company's policy permits, an employer theoretically could allow an employee to carry a negative vacation balance and then recoup the time later. This approach can become complicated, however, particularly if the employee separates before eliminating the negative leave balance.

8 See, e.g., Del. Code. Ann. tit. 20, § 3116 (discussing the restriction on the use of motor vehicles during a Level 3 Driving Ban); 43 Pa. Cons. Stat. § 1482 (stating that employers may not discipline employees "for failing to report to work due to a closure of the roads" either in the county where the employer is located or the county where the employee lives, due to a state of emergency declared by the governor).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.