This year’s winter weather has wreaked havoc on many parts of the country. Employees have been unable to travel to work, and businesses throughout major cities have shut down their offices. Office closures are costly to businesses, and employers frequently have questions about whether they must pay their employees in the event of such closures. The Fair Labor Standards Act provides answers.

The answer is simple for non-exempt employees. Under the FLSA, employers are required to pay non-exempt employees only for hours actually worked. If the office is closed for the day, delays opening, or closes early, non-exempt employees need not be paid for the hours the office is shut down. However, if employees are permitted to work from home when the office is closed, they should be required to track all hours worked and should be compensated accordingly at their hourly rate.

Although employers are not required to pay non-exempt employees for hours spent not working due to inclement weather, employers can create policies that provide otherwise. For example, an employer may permit non-exempt employees to use paid time off (PTO) when the office is closed due to inclement weather, or it may decide to pay non-exempt employees nonetheless.

Exempt employees are treated differently. The general rule under the FLSA is that exempt employees who work any part of the workweek must be paid their full weekly salary. The laws related to exempt employees and inclement weather generally give rise to two questions:

1) Can an employer require an exempt employee to use available PTO hours?

2) Can an exempt employee’s pay be docked if the employer’s office is open, but the exempt employee fails to come to work due to the inclement weather? The Department of Labor has explicitly answered each of these questions in two opinion letters (available at http://www.dol.gov/whd/opinion/​FLSA/2005/2005_10_28_46_FLSA.htm and http://www.dol.gov/whd/opinion/FLSA/2005/​2005_10_24_41_FLSA.htm).

An employer may require an exempt employee to use PTO or vacation time for days the business is closed due to inclement weather. The law does not require that the employee’s salary come from any specific source, it merely requires that the exempt employee be paid his full salary when the office is closed for less than one full workweek. The Department of Labor makes clear, however, that the exempt employee must receive his salary even if the employee has no accrued PTO, or the employee already has a negative balance of PTO.

On the other hand, if the office remains open, but an exempt employee fails to come to work for a full day due to the inclement weather, an employer may deduct a day’s pay. The FLSA provides that if an exempt employee is absent for one or more full days due to personal reasons other than sickness or accident, full day deductions can be made. The Department of Labor interprets “personal reasons” to include inclement weather emergencies, and permits an employer to lawfully deduct one full-day’s absence if the office is open, but the employee chooses not to report to work. Importantly, however, if the exempt employee reports to work for any part of the day, the employee must be paid for a full day. Similarly, if an exempt employee works from home for part of the day, the employee must be paid.

It is best practice for employers to have an inclement weather policy that addresses:

1. How and when the company will notify employees of closures due to inclement weather;

2. Whether non-exempt employees will be paid for the hours the office is shut down or if they will be able to use PTO;

3. Whether exempt employees will be required to use PTO for days the office is closed; and

4. Guidelines for employees who are able to work from home.

Employers should also keep in mind that workplace policies, state laws, or collective bargaining agreements may provide employees with greater rights to inclement weather pay than federal law.