Wednesday, January 26, 2011

To pay or not to pay.....employees who miss time on "snow days"

I happened to have a client ask me this very question this morning, so here’s my “official” response, and an unofficial one.

According to a letter advisory from the United States Department of Labor:

The Department of Labor considers an absence due to adverse weather conditions, such as when transportation difficulties experienced during a snow emergency cause an employee to choose not to report for work for the day even though the employer is open for business, an absence for personal reasons. Such an absence does not constitute an absence due to sickness or disability. Thus, under the policy you described above, an employer that remains open for business during a weather emergency may lawfully deduct one full-day’s absence from the salary of an exempt employee who does not report for work for the day due to the adverse weather conditions. Such a deduction will not violate the salary basis rule or otherwise affect the employee’s exempt status. Please note, however, that deductions from salary for less than a full-day’s absence are not permitted for such reasons under the regulations. If an exempt employee is absent for one and a half days due to adverse weather conditions, the employer may deduct only for the one full-day absence, and the employee must receive a full-day’s pay for the partial day worked, in order for the employer to meet the “salary basis” rule. See 29 C.F.R. § 541.602(b)(1).
A simplified approach to this is as follows:
  1. Office closed: Salaried (i.e. exempt) employees' pay unaffected; Hourly employees may be docked.
  2. Office open: Salaried employees' pay unaffected, leave time may be debited; Hourly employees may be docked.
  3. Regardless of whether open or closed: Hourly employees can be docked for partial days; Salaried employees cannot.
See also the Department of Labor's Wage & Hour Division letter FLSA2005-41.

Of note is the following language:

Since employers are not required under the FLSA to provide any vacation time to employees, there is no prohibition on an employer giving vacation time and later requiring that such vacation time be taken on a specific day(s). Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account in the situation presented above, whether for a full or partial day’s absence, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account or has a negative balance in the leave bank account still must receive the employee’s guaranteed salary for any absence(s) occasioned by the employer or the operating requirements of the business.
A few thoughts, though, about how an employer approaches the issue:

1. Is there inclement weather where you are? (If there isn't ever inclement weather where you are, leave a comment about where you are so I can take a look at real estate nearby....) Every employer ought to have an inclement weather policy. Does your employer bother to at least post a list of “holidays” each year? (Most do). Just add a sentence or two about inclement weather.

2. Employers whose staff likes coming to work generally fare better in the marketplace. Ever heard of Zappos? Google? Employers should make a decision whether to be "open" or "closed," and not force employees to trudge to work through dangerous conditions or face a short paycheck. Employers will nearly always make more money with happy, productive employees than with employees who feel they are victimized.

3. Employers should consider setting a limit like school districts do. 3 days a year? 5 days a year? Make it part of employees' personal days if you like (since, as quoted above, Federal law does not require that an employer provide: (1) personal days; (2) sick days or (3) vacation days. (Note, we're Pennsylvania based here. Check your local jurisdiction to see whether your state or local law requires a mandatory offering of personal, sick and/or vacation days.)

And as
Sergeant Phil Esterhaus used to say on Hill Street Blues, "Let’s be careful out there…."