Q: With winter still upon us, we're bracing for storms that might disrupt our business. If we close because of bad weather, do we need to pay our employees for that time?
A: The answer is a very lawyerly "it depends."
In general, nonexempt employees only have to be paid for hours they actually work. However, under certain circumstances, nonexempt employees may be entitled to some pay if they come to work when the business is closed or hours of operation change. Under R.S.A. Section 275:43-a, nonexempt employees are entitled to at least two hours of pay if they come to work and are then sent home. This is called "reporting pay."
To avoid having to pay reporting pay, employers should have a plan in place for notifying employees of business closures and schedule changes caused by bad weather, and should ensure that employees know about the plan. When bad weather is forecast, it is a good practice to remind employees of the notification plan.
The rules are different for exempt employees. In most cases, employers must pay exempt employees their full salary each week regardless of the number of hours worked. There are two exceptions to this rule that might apply when a business closes or changes its hours of operation because of inclement weather: (1) when an exempt employee performs no work at all during a work week; and (2) when an exempt employee is absent from work for one or more full days for personal reasons other than sickness or accident.
If you have to close your business for a full week because of bad weather, you are not required to pay exempt employees their salary for that week. If your business is open during bad weather, but an exempt employee does not come to work at all that day (for example because of transportation or childcare issues), this counts as a personal reason for the employee's absence, and the exempt employee does not have to be paid for that day.
The big caveat to keep in mind is that deductions cannot be made from an exempt employee's salary if the employee performs any work remotely.
Of course, if a nonexempt employee performs any work remotely on any day when either the business is closed or the employee does not come to work because of the weather, the employee must be paid for all hours spent working remotely.
Laura is an attorney in McLane Middleton's Woburn office and is admitted to practice in Massachusetts.
Published in the Union Leader (3/1/2020)
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