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By: Brian Culnan, Esq.
Iseman, Cunningham, Riester & Hyde LLP
Albany/Poughkeepsie, New York

During last year’s rough winter, many employers had their business impacted by the adverse conditions and were confronted with questions as to how to account for employees’ missed time from work.  Now that winter is just around the corner, it may be a good time for employers to review and update their inclement weather policies.

For non-exempt employees, compliance with the Fair Labor Standards Act (“FLSA”) is relatively simple.  Non-exempt employees must be paid only for hours worked.  The FLSA does not require an employer to pay non-exempt employees when they do not come to work due to inclement weather.  In addition, because the Department of Labor has ruled that an employer may give its employees vacation time and then require that such vacation time be taken on a specific day(s), an employer can require a non-exempt employee to use his or her leave time for a weather-related absence (even in less than full-day increments).

The rules are a bit more complicated for exempt employees, who must be paid on a salaried basis.  The general rule is that exempt employees must be paid their full salary for any week in which they perform work.  Partial-day deductions from an exempt employee’s salary are not allowed.  As a result, when an exempt employee is absent for less than a full day, his or her guaranteed salary must be paid even if the employee has no accrued vacation or leave time.  To make such a deduction would jeopardize the employee’s exempt status.

The rules are different when the employer is open for business, and the employee is absent for at least a full day.  Under the FLSA, deductions from an employee’s leave time or salary may be made for absences of one or more full days for “personal reasons” other than sickness or accident.  When an employer is open for business and the employee chooses not to report to work, the Department of Labor considers this an absence for a “personal reason” not attributed to sickness.  Deductions from salary may be made, provided they are taken in full-day increments.  By way of example, if an exempt employee is absent for one-and-one half days due to adverse weather conditions, the employer may deduct for the one full-day absence and must pay the exempt employee a full day’s pay for the partial day worked.

Finally, if the employer closes operations due to the weather, it cannot make deductions from an exempt employee’s salary.  However, if it provides paid leave, the employer may require employees to use accrued paid leave, either in partial-day or full-day increments.

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