Inclement Weather and the FLSA: If Employees Don’t Show Up, When Can Employers Deduct?

It’s that time of year again.  Snow and ice will soon cause some employees to stay home, either because they can’t get out or because they don’t want to.  The weather may also cause employers to close (or just not open) their doors.  Do employees have to be paid when they stay home?  Do employees have to be paid if the store doesn’t open?  The answer depends in part on the employee.

For non-exempt employees paid by the hour, the answer is simple: if they don’t work, they don’t have to be paid.  Of course, nothing prevents an employer from paying non-exempt employees for inclement weather days; but the employer just isn’t required to do so by law.

Employers must be careful when making deductions from the pay of exempt employees. The federal Fair Labor Standards Act (“FLSA”) generally requires that employees be paid at least minimum wage and time and a half for overtime, but certain groups of employees (“exempt employees”) are exempt from these requirements because of the executive, administrative or professional nature of their jobs. The exemptions of “exempt employees” also rely, in part, on the fact that they are paid on a “salary basis”.

In general, payment on a “salary basis” requires that the employee receive his or her full salary in any week in which the employee works; regardless of the number of hours the employee actually works.  If these individuals are not paid on a “salary basis”, they may lose their “exempt” status, opening their employer to claims for unpaid overtime and other wages.

However, the Department of Labor has identified certain kinds of deductions employers may take from the pay of exempt employee which will not jeopardize their “exempt” status.  One of the deductions permitted by the Department is when an exempt employee takes a full day off for personal reasons other than sickness or disability.  If the business remains open, an exempt employee who does not come in for a full day because of inclement weather is considered to be absent for “personal reasons” – thus, the employer may deduct a full day’s pay from the exempt employee’s salary and not risk the exempt status of that employee.

But these deductions are only permissible if the business remains open and the employee fails to work a full working day.  If the business is closed due to weather, then no deduction can be made from exempt employee pay because, under the FLSA, if an employee is ready, willing and able to work, deductions may not be made for time when work is not available.

Similarly, only deductions for full-day absences are permitted for personal reasons.  So if an exempt employee works in the morning but then leaves in the afternoon to avoid inclement weather, the employee must be paid for the full day.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including those relating to wage and hour compliance, for almost sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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