With all of this unpredictable weather we have been experiencing in the Northeast, many companies, from small mom and pop shops to large corporations, are dealing with the inability or unwillingness of employees to come to work when winter storms make travel difficult. Some companies may choose to withhold an employee’s pay, whether it is an hourly rate or a bi-weekly salary, but is this legal?

As with many things involving the law, it depends. The first consideration is whether the employee is an exempt or non-exempt employee under both the federal and state wage and hour laws, e.g., the Fair Labor Standards Act of 1938 (“FLSA”).

An exempt employee under the FLSA is generally not compensated on an hourly basis and not entitled to overtime for hours worked in a week in excess of 40. Some examples of exempt positions under the FLSA are administrative, executive, and professional employees, outside salespeople and certain computer employees. Generally, exempt employees are not entitled to overtime.

Forced or Unforced Absence

With regard to poor weather, it depends on if the company is actually open and operating and if the employee chooses to come into work versus the company being closed which leaves the employee no option to come into work. If a company chooses to close due to the weather, it is required to pay the weekly salary of an exempt employee, regardless of how many hours the exempt employee actually worked during the week of forced absence.

On the other hand, companies that chose to remain open and expect their employees to show up, even when the employee does not, must still pay an exempt employee for any partial or whole day the employee reports to work during such periods. If an employee chooses not to show up at all, an employer may deduct leave an employee has accrued, e.g., vacation or paid time off (PTO), if applicable.

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Telecommuting

Individual state laws may vary on these points. Another consideration in this puzzle is the ability of employees to “work from home”. This phrase is in quotes as many employers disagree on what it really means. While many employers have embraced the concept, many others believe that working from home is not working at all, and will choose to apply the traditional rules and policies. The law is quickly developing on many of these employer-employee issues and the new technology affecting the relationship.

Non-Exempt Workers

For non-exempt workers, generally paid by the hour and eligible for overtime under the FLSA and equivalent state laws, if they do not show up, whether due to their own election or because the company is closed due to the weather, they are not required to be paid for time not worked. Some states have some exceptions to this rule.

It is also important to keep in mind that many companies have internal policies dealing with these and similar issues. Such policies are not required by law, however, they must be applied and enforced equally among all similarly situated employees, in order to protect against liability.