So it’s going to snow a lot today and tomorrow. A lot. A potential blizzard. Some say this could be one of the biggest snowstorms ever to hit the East Coast. More than a foot of snow is expected in Manhattan, up to two feet out on Long Island, and maybe more than two feet in and around Boston. This means closed schools, downed power lines, impassable streets, and even travel bans, which also means that employers will have to decide whether to close their doors early this evening and whether to open up their doors tomorrow (and/or Wednesday). As we’ve written about before, in making those decisions, employers must account for their obligations to comply with federal, state, and local wage and hour laws.
The Fair Labor Standards Act only requires you to pay your non-exempt employees for the actual hours they work. You do not have to pay your non-exempt employees where you schedule them to work certain hours, but the employee does not actually work all of those hours. For example, if you scheduled a non-exempt employee to work until 5:00 pm and you send him home at 2:30 pm, the FLSA does not require you to pay him for the 2.5 hours he did not actually work.
I caution you however that some states — including many of those that this storm will effect (Connecticut, Massachusetts, New York, New Jersey, New Hampshire, and Rhode Island) — do have “reporting time” or “call-in” pay laws that may require you to pay at least some wages to employees who you send home early. For example, New York employers must pay the lesser of four hours of pay or the number of hours in the employee’s regularly scheduled shift, whichever is less, at the minimum hourly wage. And employees subject to the NYS Hospitality Wage Order have their own call-in pay requirements. New Jersey employers must pay an employee at least one hour at his or her usual rate, unless the employee has already worked his or her regularly scheduled hours for the week. Therefore, you want to make sure to properly notify your non-exempt employees well in advance of the workday so that they do not report to work and make themselves eligible for reporting time or call in pay. I also caution you to take note of any applicable collective bargaining agreement that may include pay provisions for inclement weather/operations shutdowns.
With exempt employees, the FLSA requires you to pay them their entire weekly salary if they work any portion of the workweek, even if you are forced to shut down your operation because of the blizzard. So if you shut down today and tomorrow, but open Wednesday and the employee works Wednesday to Friday, you must pay them their entire weekly salary. But if you decide to stay open, and the employee is unable or unwilling to report to work because of the weather, you may deduct a full day’s pay from the employee’s weekly salary for any day he or she did not work. (I will also note that in the rare event that the weather forces you to shut down for the entire week, you would not have to pay your exempt employees that week if they perform no work.)
You must also consider whether any state or local laws protect employees taking leave related to the weather. For example, New Jersey prohibits you from disciplining an employee who does not report to work because he or she is serving as a volunteer emergency responder during a state of emergency declared by the President of the United States or the Governor of New Jersey.
Considering Whether to Close/Open and How to Minimize Costs
The answers to these questions are not always black and white. Whether to close and how to minimize the financial impact on your business requires practical considerations as much as legal, and depends on many factors, including the industry in which you are operating and how the work is performed. For example, although forced to close, you may have the ability to have your employees work from home. Or if you have a business where staying open is imperative (e.g., a restaurant), you may want to consider arranging for transportation to ensure that your employees make it to work, or even threaten discipline if they don’t report to work. Or you may want to consider permitting employees to arrive late or leave early, or to make up the work at some other time. To minimize costs, you may also want to consider whether to require that employees utilize their accrued paid time off during any office closure. However, be sure to consider the message this will send to you workforce before making that decision.
If you are grappling with how best to respond to this storm, we recommend that you consider the following issues: (i) how best to notify your workforce of whether, when, and how the office will close early today or open the following day; (ii) how you will pay your employees in the event of a closure; (iii) whether you will require employees to work from home if the office is closed, and if so, how you expect non-exempt employees to record and report their time; (iv) whether you will require your workforce to utilize paid time off during any office closure; and (v) whether you will discipline employees failing to report to work or for leaving work early without your approval. Communicating with your workforce on these important issues should help you comply with relevant wage and hour laws while minimizing the impact to your business.