• Taking a Snow Day Has a Cost for Exempt Employees
  • January 13, 2006
  • Law Firm: Dinsmore & Shohl LLP - Cincinnati Office
  • Each year the winter months bring a host of employee-friendly attending circumstances - holidays, bonuses, vacation days. On occasion, winter brings another joyous event - the snow day. Snow days can present a slippery situation for employers, though. An employer must decide whether inclement weather necessitates closing down the shop or office, or if business must go on in spite of the winter doldrums.

    The decision whether to officially close for a snow day is one with consequences that reach farther than an employer may think. As most employers likely have observed, employees often reach their own conclusions as to when the weather warrants a day off. However, employers often conclude that closing for the day is appropriate.

    It is important for employers to understand the difference between employer-mandated closures and employee-invented snow days.

    The Department of Labor (DOL) recently issued an opinion letter in response to an employer's inquiry regarding the effect of exempt employees missing work for weather-related reasons on the "salary basis" requirements of the Fair Labor Standards Act (FLSA). The employer had in place an absence policy which provided that "if employees do not report to work during adverse weather conditions, when they are not sick and have not been advised not to report to work, the employees are docked a full day of pay and are not permitted to use their vacation or personal (leave) bank for the absence." The policy further provided that exempt employees who arrive late under such circumstances are not docked in any manner regardless of how many hours they miss of their scheduled shift.

    The employer inquired as to whether the "salary basis" requirements of FLSA § 13(a)(1), which permit deductions for one or more full days for absences for "personal reasons," would include within the "personal reasons" exception absences for weather-related reasons. In response, the DOL expressed its opinion that "an employer that remains open for business during adverse weather emergencies may make deductions, for full-day absences only, from the pay of an otherwise exempt employee who chooses not to report to work for the day(s) because of the adverse weather emergencies, and treat any such full-day absences(s) as being for 'personal reasons' under the applicable regulations."

    The DOL elaborated that it regards absences due to adverse weather conditions, such as when transportation difficulties experienced during a snow emergency cause an employee to choose not to report for work for the day even though the employer is open for business, an absence for personal reasons. Thus, under an absence policy such as the one used by the employer making the inquiry mentioned herein, an employer who remains open for business during a weather emergency may lawfully deduct one full-day's absence from the salary of an exempt employee who does not report for work for the day due to the adverse weather conditions.

    It is important to note the distinction between a full-day's absence, and a partial day absence. Only a full-day's absence may be deducted from an exempt employee's pay. Anything less may not be deducted. Accordingly, an exempt employee who misses one and one half days due to inclement weather may only be deducted one full-day's pay.

    Conversely, employers may not deduct any pay for employer-sanctioned weather closures. Moreover, if the employer closes operations due to a weather-related emergency or other disaster for less than a full workweek, then the employer must pay an exempt employee "the full salary for any week in which the employee performs any work without regard to the number of days or hours worked," because "deductions may not be made for time when work is not available." See 29 C.F.R. § 541.602(a).

    Employers should be aware of both the consequences of their decision to close for weather-related reasons and their exempt employee's unilateral decision to not report to work due to adverse weather. Employers are not required to pay exempt employees for self-prescribed snow days, and should adopt clear policies outlining their absence policy in regards to weather emergencies.