The Fair Labor Standards Act (FLSA) requires employers to compensate their employees for all hours employees are “suffered or permitted” to work. This means that an employer must compensate its employees for all hours employees actually work and all hours during which employees are required to remain available for their next assignments.
However, employers are not required to compensate their employees for any time that employees are off-duty—when they are free of any work-related responsibilities and able to use their time at their leisure.
A possibly difficult situation arises when a weather emergency limits a salaried employee’s ability to report for work. During these circumstances, employers must determine whether they can lawfully withhold or deduct pay for salaried employees who are absent. According to a DOL opinion letter, an employer’s obligation to pay employee wages for weather-related absences depends on whether:
- The salaried employee is exempt from FLSA requirements; and
- The employer remains “open” during the weather emergency.
Receiving a salary does not automatically exempt an employee from FLSA regulations. Employees are exempt from FLSA regulations only if they meet all of the criteria for any of the exemptions specifically outlined in the Code of Federal Regulations. The most common exemptions for salaried employees are the white collar exemptions.
To qualify for a white collar exemption, an employee must meet a salary basis test, a salary level test and a duties test. The salary basis test is used to make sure the employee is paid a predetermined and fixed salary that is not subject to reduction due to variations in the quality or quantity of work. The salary level test is used to ensure that the employee meets a minimum specified amount in order to qualify for the exemption. The duties test requires that the employee’s job duties conform to executive, administrative or professional duties, as defined by law.
The salary basis test becomes extremely important in situations where employers consider withholding or deducting pay for salaried employees who do not report to work during a weather emergency. An exempt employee satisfies salary basis requirements only if his or her salary is paid whenever the employee is “ready, willing and able to work,” regardless of whether work was available from the employer.
However, the FLSA allows employers to make lawful deductions or withholdings from an exempt employee’s wages when the exempt employee is absent from work for one or more full days for personal reasons—other than sickness or disability. In these cases, wage deductions or withholdings for full days are possible, the DOL explains:
If an employee is absent for two full days to handle personal affairs, the employee’s salaried status will not be affected if deductions are made from the salary for two full-day absences. However, if an exempt employee is absent for one and a half days for personal reasons, the employer can deduct only for the one full-day absence.
Open For Business During a Weather Emergency
The DOL considers that an exempt employee who does not report to work during a weather emergency is absent from work for personal reasons when his or her employer remains open for business. This means that employers can lawfully deduct or withhold this employee’s wages for every full day that the employee does not report for work.
However, salaried exempt employees that report to work—regardless of how late they report or how many hours they work that day—must be paid for a full day’s work.
Finally, the DOL stated in a another opinion letter that employers may require salaried exempt employees to use any accrued vacation or leave time to offset the hours they could not work because of the weather emergency if:
- The employer has a bona fide vacation, paid time off or leave plan;
- The employee has accrued vacation, paid time off or leave at the time of the weather emergency;
- The reduction will not result in a negative balance of accrued vacation, paid time off or leave;
- The employee does not have a negative balance of accrued vacation, paid time off or leave; and
- Compensation for accrued vacation, paid time off or leave allows the employee to receive the same amount of wages the employee would have received if he or she had not been absent or late to work because of the weather emergency.
Closed During a Weather Emergency
An employer must compensate its salaried exempt employees for being ready, willing and able to work during a workday, regardless of whether the employer is able to provide work for those employees to perform. The DOL is of the opinion that an employer that shuts down because of a weather emergency is unable to provide work for its salaried exempt employees but must compensate them if they are ready, willing and able to work. This means that employers cannot withhold or deduct any part of a salaried employee’s wages if the employee is absent because the employer has actually closed for the day or has advised the employee to not report for work because of the weather emergency.
Determining payment for non-exempt employees is more straightforward. The FLSA requires employers to compensate their non-exempt employees only for the hours non-exempt employees actually work. This means that an employer does not have to compensate a non-exempt employee who is absent because of a weather emergency or an employee who works a partial day due to adverse weather—only for the number of hours the employee actually worked during that day.
“On-duty” and Remote Work
Employers should consider an employee’s on-duty status and the employee’s ability to work remotely when evaluating whether an employee has performed any work or has been absent during a weather emergency. To do this, employers must determine whether their employees’ activities can be considered “work,” enabling employees to accrue compensable time.
The U.S. Supreme Court has defined “work” or “employment” as physical or mental exertion that is controlled or required by an employer for the employer’s benefit. The Supreme Court has recognized that this description includes the idea that an employer may hire an employee and require him or her to do nothing or to wait for something to happen. However, if the amount of overtime compensable work is negligible, the de minimis doctrine may allow an employer to overlook the employee’s activities.
Please contact the Horton Group for more information on FLSA wage payment and work hour requirements.
Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.