by Carolyn Buccerone, Esq.
In the wake of the recent snow emergencies that swept across the Northeast, many employers have been trying to figure out when and if they have to pay their employees when work is shut down due to severe weather conditions.
For the most part, the answer depends on an employee’s status under the Fair Labor Standards Act ().
Employers need to carefully follow the appropriateand guidance. Otherwise, they could jeopardize an employee’s exempt status.
Follow these guidelines to determine whether you need to pay employees on snow days—or any other condition that could cause an unexpected workplace closing.
: Work closed
When a workplace shuts down for less than a full workweek due to inclement weather, exempt employees may not be docked pay for missed days. The employee’s salary must remain the same.
Employers may require exempt employees to use vacation days or other paid leave, but can’t require leave without pay. Employees that have no accrued leave must still be paid in full.
Exempt employees: Work open
Employers have more flexibility when operations remain open. In that situation, if an employee doesn’t come to work due to inclement weather, the U.S. Department of Labor has deemed that an absence for “personal” reasons. Such absences need not be paid, even to exempt employees.
There’s another option: The employer can require the employee to use a vacation day or other accrued paid leave for that time. That may be easier for employees to bear than having their pay reduced.
Of course, employers can always choose to pay the normal amount without any deduction or use of paid time off.
Note: Remember, if you remain open and exempt employees miss work, you can only make full-day pay deductions. If an employee comes to work for any portion of the day, he or she must be paid for the entire day.
: Work either closed or open
In general, employers do not have to pay nonexempt (hourly) employees when they perform no work.
Therefore, there is no need to pay when the work premises are closed and the employees can’t perform any work. The same applies when the workplace is open and bad weather keeps employees from coming in: No work, no pay.
Similar to the FLSA, New Jersey law doesn’t require employers to pay nonexempt employees for time not actually worked. This includes instances where municipal, county or state officials have declared a state of emergency.
However, an employer may choose to pay for a certain number of snow days in order to maintain good employee morale. This choice lies solely within the employer’s discretion.
Remember, simple decisions such as whether to pay an employee for a snow day can have a dramatic effect on an employee’s exempt status under the FLSA. Therefore, it is important that each such decision be given due consideration.
Author: Carolyn Buccerone, Esq., is an associate at Genova, Burns & Giantomasi (www.genovaburns.com) in Newark. Contact her at (973) 533-0777 or firstname.lastname@example.org.
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