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To pay or not to pay for snow days

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Q. Am I required to pay my employees when they miss work due to inclement weather?

A. Unless you have contractually obligated yourself to pay your hourly employees for “snow days,” you are not required to pay nonexempt hourly workers for days they do not come to work due to weather.

Employers can become “contractually obligated” to their employees by entering into a specific written agreement to provide certain pay and benefits. In addition, an employer can become contractually obligated, in the absence of a written contract, by making specific promises to its employees upon which the employees rely, to their detriment. This is known as an “implied contract,” where a contract is implied by law to prevent the employee from suffering harm because he relied upon a promise of his employer.

For example, if an employee asks about pay for snow days during a job interview, the company president promises the employee will be paid for snow days and the employee turns down another job offer as a result of this promise, the employer would be obligated to make good on the specific promise.

Such situations are very rare, however, so, as a general rule, employers do not have to pay nonexempt hourly workers for time they do not work due to inclement weather.

The analysis is somewhat different for salaried, exempt employees. The Fair Labor Standards Act (FLSA) requires that salaried employees receive their full salaries for any week in which they perform any work, unless the absence falls within one of the specific situations outlined by the regulations where salary deductions are permissible.

One such situation is when the employee is absent for one or more full days due to personal reasons. If the employer’s business operations are open, the employer may make a salary deduction for one or more full days the employee does not come to work for weather-related reasons when the employee chooses to stay home.

However, the FLSA does not allow for deductions from an exempt employee’s pay when the absence is due to the operational needs of the company. Thus, if the business is closed due to inclement weather, and the employee was ready, willing and able to work, deductions cannot be made from the employee’s weekly salary without running afoul of the FLSA.

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