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Closed for Inclement Weather: Employer Best Practices

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“INCLEMENT” – Adjective; (a) archaic – unmerciful; (b) severe or stormy weather[1]

Winter weather advisory: snow, gusty winds, ice, and bitter cold are hitting much of our nation, with Chicagoans soon facing record wind chills of fifty below or worse. What should responsible nonprofits do to address inclement weather issues for their employees and program participants? And are employees entitled to pay for time missed due to inclement weather?

As an overarching HR matter, caution and common sense must be practiced when it comes to inclement weather situations. No employer should expect employees to risk life and limb to get to the office; and it may be prudent to cancel or postpone program activities too. Watching the weather forecast and staying attentive to public service announcements (e.g., school closing, public transit schedule adjustments) should help supervisors and program administrators to make the tough calls. Remote working options can help as well, with employees handling work responsibilities from home and through available technology.

With respect to employers’ pay obligations, three key factors apply: (a) whether the employees are “exempt” or non-exempt” under the federal Fair Labor Standards Act (FLSA) and comparable state laws, (b) whether the employer is open for business, and (c) whether money matters more than morale.

The FLSA distinguishes between exempt and non-exempt employees. To be classified as “exempt,” an employee must (a) be paid a salary, (b) of at least $455 per week, and (c) have certain skills or duties (e.g. executives, professionals, or administrative employees who regularly exercise discretion over significant matters).[2] All other employees are considered “non-exempt,” and are entitled to overtime pay and other legal protections.

On inclement weather days, exempt employees are slightly better off than non-exempt employees. The key difference is that non-exempt employees are entitled to pay only if they work, unless the business is closed. Exempt employees, on the other hand, are entitled to pay regardless of the circumstances. For both types of employees, however, employers may require that paid leave (e.g., vacation and personal days) be substituted for any unpaid leave.

One common pitfall for employers is to improperly deduct pay for exempt employees, essentially giving them unpaid leave for missed work. At least theoretically, a risk may then arise that employees may be reclassified as non-exempt based on such pay modification. Inadvertent or isolated FLSA violations, however, should not result in reclassification. In addition, employer liability is a practical concern only for serious problems, such as if exempt employees (later reclassified as non-exempt) regularly work more than 40 hours per week and therefore become entitled to overtime pay.

Regardless of such options technically available to employers, requiring that employees take paid leave days or deducting their pay due to inclement weather may prove very unpopular. Accordingly, employers are well-advised to adopt an inclement weather policy providing clear guidelines addressing potential use of paid leave, pay deductions for non-exempt employees’ missed work, and perhaps even extra paid “snow,” “cold,” or other inclement weather days when circumstances warrant such benefit. And with winter weather frosting our glasses and chilling our toes, what better time to think of warm summer breezes and palm trees (oh no, hurricanes too!).

[1] Merriam-Webster online dictionary

[2] For background guidance on the “white collar exemption,” see our blog post on the subject here. For guidance on the “ministerial exemption,” see our blog post on the subject here.

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