Quick Hits
- Generally, under the FLSA, employers must pay exempt employees their guaranteed salary during business closures caused by inclement weather, as deductions for employer-caused absences are not permitted.
- Employers are typically required to pay nonexempt employees for all hours worked, but if they cannot work remotely due to the nature of their jobs during a weather-related closure, employers are not required to pay them.
- Connectivity problems during inclement weather affect wage and hour obligations similarly to any other time. Employers may need to implement policies and communication plans for reporting to work, working remotely, and addressing connectivity problems.
Wage and Hour Issues: Business Closures
When inclement weather results in a temporary business closure, employers face distinct considerations for the payment and compensation of exempt and nonexempt employees.
Exempt Employees
Generally, under the FLSA, employers must pay exempt employees their guaranteed salary because an employer may not deduct for absences caused by the employer. This would be the case in the event of a partial shutdown due to weather or a shutdown due to business reasons. However, exempt employees who continue to, or who are capable of, working remotely in these situations would not be impacted from a wage and hour perspective.
Employers may require exempt employees to use their accrued paid time off (PTO) during such shutdowns. But employers may decide not to do so due to the impact such a requirement could have on employee relations—especially during difficult times. Moreover, exempt employees’ job duties may allow for some work to be done remotely even without power or internet.
Nonexempt Employees
The FLSA requires employers to pay nonexempt employees for all time that they work. If an office or facility is closed due to inclement weather and a nonexempt employee is not able to work remotely due to the nature of the job, then the employer is not required to pay the nonexempt employee. Again, employers—as a policy decision—may decide to go ahead and continue to pay employees in those circumstances.
As was the case with exempt employees, employers may allow or require nonexempt employees to use their PTO during office closures caused by inclement weather. However, employers that comply with paid sick leave requirements through their PTO policies may not require employees to use so much PTO that it brings them in conflict with any relevant paid sick leave laws.
Remote Work and Connectivity Issues
Inclement weather is often accompanied by issues surrounding access to the internet. Storms might affect the functioning of both public and private utilities. Additionally, utility towers, power lines, and phone lines might all be damaged or unserviceable during a disaster. These events can affect businesses that rely on remote workforces and those that decide to pivot to remote work in the wake of a disaster.
If connectivity issues are present, employers may want to note that the wage and hour implications are the same during a storm as they would be anytime an employee loses internet connection at his or her remote work location. Employers would still be obligated to pay exempt employees their weekly salaries even if those employees experience connectivity issues.
However, if a nonexempt employee cannot work for those same reasons, the employee is not entitled to be paid for the time not working. Considerations such as whether an employee is able to use a personal hotspot to continue to work or go to a public place with internet access may affect the situation.
Key Takeaways
Employers operating in geographic areas that are frequently affected by winter storms may need to take the above wage and hour considerations into account—and craft policies outlining protocols for such contingencies in their handbooks. At the same time, some employers have removed these policies from their handbooks because most or all of their employees have the capability to work remotely and most worked remotely during the pandemic.
At the heart of any such inclement weather policy is a robust communication plan permitting employers and employees to quickly communicate in the event of unforeseen closures. Employers may also find it useful to outline their expectations for both exempt and nonexempt employees in advance of weather-related closures and work interruptions. For example, employers can clearly communicate which positions may work remotely and under which circumstances, the reporting procedures to follow in those circumstances, and how to contact management for further instructions to communicate connectivity issues.
Ogletree Deakins’ Wage and Hour Practice Group will continue to monitor developments and will post updates on the Leaves of Absence and Wage and Hour blogs as additional information becomes available.
Charles E. McDonald, III, a co-author of this article, was previously quoted on this topic on SHRM Online.
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