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The Groundhog Says Six More Weeks of Winter, So Employers Should Remain Mindful of Their Obligations During Inclement Weather

Last Thursday Punxsutawney Phil told us that we are facing six more weeks of winter.  Great.  We thought it served as a good opportunity to remind employers of the importance of establishing inclement weather policies that are compliant with wage and hour laws for both exempt and non-exempt employees.  Here is a quick, yet helpful, Q&A for your reading pleasure:

  • Q: If I close the office, but my employees work from home, must I pay them?

A: Yes, you must compensate your employees for all hours worked, regardless of whether they performed the work in the office or remotely outside the office, and regardless of whether they are exempt or non-exempt.

  • Q: Do I have to pay them if I close the office because of inclement weather and they don’t perform any work?

A: You must pay an exempt employee who does not perform any work on a day that the office is closed, as long as he or she was ready and willing to work. You can dock an exempt employee a full day’s pay where he or she misses work due to weather when the office is open (but note, however, that deductions from salary for less than a full-day’s absence are not permitted).  The rules are a little different for non-exempt employees.  If you close the office entirely, you do not have to pay your non-exempt employees.  However, if you close the office during the workday, and non-exempt employees have already reported to work, you must pay them for the hours they worked and, in some states, you may have to pay them reporting time pay, which basically provides a minimum payment to these employees to compensate them for the fact that you sent them home early.

  • Q: What if I make an improper deduction from an exempt employee’s pay in connection with inclement weather?

A: Exempt employees could lose their exemption but this is unlikely to occur if the improper deduction is either isolated or inadvertent, and you reimburse the employee. It’s even more unlikely if you have a “safe harbor” provision regarding deductions present in your employee handbook.

  • Q: What should my inclement weather policy include?

A: Inclement weather policies should tell employees how and when they will be notified of office closures, provide guidelines for working remotely, and outline the applicable payments and deductions permitted during inclement weather.

  • Q: Can I force my employees to utilize their paid time off when I close the office?

A: Yes, on a strictly legal basis, you can do this. Whether this is a sound business decision is another matter, and you should weigh the consequences for doing so, including the impact on employee morale.  Note, however, that if the employee does not have a sufficient amount of banked paid time off, you cannot then dock their pay if they were willing and able to report to work.

Natalie Young is an Associate in Mintz Levin, LLP's Boston office and focuses on a wide variety of employment and labor matters. She represents clients in litigation arising from employment disputes, including noncompetition and nonsolicitation covenants, discrimination and sexual harassment claims, and wage and hour matters. She also counsels clients on employment and separation agreements, with particular experience in ensuring compliance with the Age Discrimination in Employment Act (ADEA) and Older Workers Benefit Protection Act (OWBPA) in the context of a reduction in force.

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