We hope you stayed safe, warm, and dry during the recent snowstorm! Acting on the weather forecasters’ dire predictions of massive snowfall, you may have proactively chosen to close your business and tell your employees to stay home. If so, you may be wondering about your obligations with respect to paying your employees for this day off. The answer depends on the employee’s classification and the state in which your business is located.
Non-exempt employees generally do not have to be paid for a day on which they did no work. Therefore, if your business was closed for the entire day and your employees were told to stay home, you most likely will not have to pay them for this day. However, this issue gets more complicated if your business was open for part of the day. Some states have call-in pay requirements which are triggered simply if an employee reports for work, even if the employee is immediately sent home because of weather conditions. For example, in New York, employees who report for work must be paid for at least four hours at minimum wage or for the actual number of scheduled hours if less than four (this may vary depending on which wage order applies to your business). Of course, if an employee is sent home after working for part of the day, you must pay the employee wages for the time he/she worked. Keep in mind that because employees must be paid for all hours actually worked, an employee who does any work from home must be paid his/her wages for the time worked.
Exempt employees present a different dilemma. Most states and the federal government require you pay your exempt employees for days your business is closed if you are closed for less than a full workweek. Some states and the federal government allow an employer not to pay exempt employees on days when the business stays open but the employee is unable or unwilling to come to the office. This is considered an absence for personal reasons. However, in many cases you cannot deduct for less than a full day’s absence. If an exempt employee performs any work from home, he/she must be paid for the whole day. It is very important in the days of email and cell phones where employees can easily be contacted even if they don’t get in to the office. You must ensure you pay your exempt employees properly in these situations or take the risk of losing their exempt status. If this mistake is uncovered by a lawsuit or Department of Labor investigation and the employee is reclassified, you could be liable to the employee for unpaid overtime going back to the time of the incident. You should check with your counsel prior to making such a significant decision to avoid loss of the employee’s exemption.
One further question that commonly arises is whether you can require employees to use Paid Time Off or other forms of vacation pay (“PTO”) for closures due to inclement weather. The answer depends on your state law. While the federal Department of Labor has no prohibition on employers requiring employees to use PTO on particular days, state law varies. For instance, in Connecticut, employers may not require exempt employees to use PTO on days the business is closed. New Jersey, on the other hand, has no such prohibition. Of course, you should be sure to enforce whatever policies you do have uniformly and consistently to avoid other legal problems such as claims of discrimination.
This is a complex area of the law with a myriad of different possibly applicable rules depending on your state. You should consult with competent labor and employment counsel before taking any action or adopting any policies which could affect payment of employee wages on days the business is closed. Not doing so could result in loss/waiver of an employee’s exempt classification and other wage and hours issues.
Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
