The winter season presents employers with many weather related issues ranging from obligations to keep outdoor areas safe to deciding whether to close the business for all or part of the day. Closing the business due to inclement weather raises pay issues – what pay are employees entitled to when the business closes? It depends, in part, whether the employee is considered exempt or non-exempt and whether, the employee is paid on a salary basis.
For exempt employees, the FLSA does not permit employers to make deductions from their pay for partial day, or even whole day closures. When an employer closes the business, the employer has made work unavailable to the exempt employee and so the exempt employee must be paid his/her full salary for the week even though he/she may not have worked the full workweek. If the business is open, but the exempt employee could not make it in because of the weather, then the FLSA has an exception that the exempt employee does not have to be paid if he/she has been absent a full day and did not perform work at home. If the employee works part of the day from home, the employer can require that the employee use accrued paid time off. Generally speaking, employers will be required to pay exempt employees as usual during a weather-related closure.
The story is different for non-exempt employees who are not entitled to pay during a weather related closure. If the office closes early due to bad weather, the non-exempt employee must be paid for the actual hours that he or she worked up to the time of the closure. However, if the non-exempt employee works from home, the employee must be paid for those hours worked. Employers can allow nonexempt employees to use accrued paid time off to cover the time away from work due to the closure. Don't forget that NH law requires that nonexempt employees who are paid on a salary basis must receive a full salary for any pay period in which the employee performs any work without regard to the number of days or hours worked.
To avoid any confusion about how weather-related closures will be handled, businesses should have a written inclement weather policy in their employee handbooks. The policy should be clear that employee safety is the business's main concern and that employees must make their own determination as to whether it is safe to report to work when the office has not been closed. The policy should also be clear as to the employees' responsibility to give notice if they cannot make it to work due to bad weather and whether the employees will be given the opportunity to make up missed time.
For additional information on this topic, click here to read my recent article in the NH Business Review.
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