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3-in-1: Inclement Weather, Holiday & FLSA


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NLRB: Information Does not = Invitation 



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HR & the Law in the News
December 2014, Volume 13, Issue 12
Hello again and welcome to the latest edition of FiveL Company's monthly e-newsletter, bringing you some of the latest news related to employment policies, practices and programs. Check out the upcoming events including this month's FREE BONUS webcast "Employment Law Update 2014: The Year in Review Part II" - pre-approved by HRCI for 1.25 HR credits. Click here for more info including 2015 discounted, annual subscriptions now available
3-in-1: Inclement Weather, Holiday & FLSA

This Thanksgiving week was perhaps a bit unusual.  We had not only the holiday, which lends itself to some Fair Labor Standards Act (FLSA) inquiries each year, but this year's Thanksgiving was preceded by some not-so-insignificant snowfall for some.  So we got a double whammy: whom do we have to pay, how and what when we close the day before a holiday due to inclement weather?!  Ready?  Here we go!...


Non-exempt employees generally - this rule is easier than the myriad spins, twist and "it depends" for exempt employees.  Barring some contract or agreement to the contrary, remember that for your non-exempt or hourly employees you generally have to pay only for hours actually worked.  We won't take the time here to get into what constitutes time actually worked (travel time, idle time, meetings, training and more) - we'll cover those in the next edition! But when an hourly employee performs no work, even if it is because the employer is closed a full or partial day for a holiday, inclement weather or some other reason then no wages are due if no work was performed. 


Exempt employees generally - a key rule here, with exceptions of course (7-8 actually, depending upon how you count them) is that an exempt employee must be paid his or her guaranteed minimum salary in any work week in which any work is performed.  Absences occasioned by the employer's actions must be paid.  So when you close your business for a full or partial day, you must pay the employee his or her regular salary for that day if that employee was otherwise able and available for work.  


Can an employer require the employee to use paid leave for absences when we close the business for a full or partial day?  Under the FLSA the answer is "Yes."  The Department of Labor (DOL) does not distinguish from where the wage payment must be made e.g., from your payroll account or the employee's paid leave bank - just that payment must be made.  

What if the employee is absent for a full day when the business is open, such as due to inclement weather? This is one of the seven or eight exceptions to the general rule. A DOL Opinion Letter indicates that a full day absence due to inclement weather when the business is open is considered an absence for a personal reason and may be unpaid.


What if the employee is absent for a partial day when the business is open; must we pay him or her? Yes. If the exempt employee performs any work on a given work day then you pay the exempt employee his or her guaranteed minimum salary for that day.  You may not deduct for partial day absences, except those occasioned by leave under the Family and Medical Leave Act; that's right - there's an exception to the exception.  


What if the exempt employee has no accrued paid leave left?  Then what?  The employee who is absent a partial day must be paid his or her guaranteed minimum salary for the day so, if the employee has no accrued paid leave left then you must pay the employee his or her regular salary for the day.  Another option is to advance the employee paid leave, providing a negative leave balance.  Of course, if the employee quits the next week you know what the next question will be...can we deduct the negative leave balance from the final pay check?  Stay tuned depends!  [hey, sorry; I don't make the rules - I just write about 'em]. 


So stay tuned for the next round of snow, sleet and holiday merriment! Until then, travel safely and have a warm and wonderful holiday season!

Upcoming Events
FREE Webcast!
Employment Law Update 2014: The Year in Review Part II
December 17, 2014 10:00 - 11:15 a.m. EST


Join this FREE BONUS program as we continue our discussion started in the November 26th webcast.  Part II will focus on recent news and events related to: 

  • Recruitment & Selection (non-testing) 
  • (Pre)Employment Testing 
  • NLRB Updates 
  • Religion in the Workplace 
  • On the Horizon 2015
To register just click here.


$49 per person and pre-approved by HRCI for 1.25 HR credits. 
NOW AVAILABLE! Get all 11 for the price of 8
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Upcoming Events: Click here for a full listing of public and private speaking engagements, seminars and conferences.

Upcoming Events - Public Seminars
Squeezed for time between work and holiday preparations? Whether you're on the road or in your office, virtual educational programs are coming your way!  Check 'em out! 
Tuesday, December 9th, "Absence Management" a webcast hosted by NAMIC 2:00 EST.
Wednesday, December 17th, "Employment Law Update 2014: The Year in Review" 10:00 a.m. EST FiveL webcast

Wednesday, December 17th, "Workplace Communication..." webcast hosted by NAMIC. 2:00 EST

Upcoming Private Client Training Programs
  • HR & the Law for Managers, full day program
  • Managing for Performance Improvement, Train-the-Trainer with limited copyright
Click here for a full listing of upcoming events. 
Want more information about FiveL Company's Train the Trainer options?  Click here
NLRB Update: Information does not = Invitation
So here's the scoop.  Let's say I am having a party and invite you to attend. I tell you that I will bring an invitation for you and you say, "OK."  Several days later you give me the number to your locker and we agree that I will leave the invitation in your locker. I later tell you that I left the invitation in your locker. Would you not consider that an offer to accept my invitation?  No, says the National Labor Relations Board (NLRB) in a recent decision. The NLRB recognized that protected solicitation under the National Labor Relations Act (NLRA) does include asking someone to join the union by signing an authorization card. But "merely providing information" e.g., "I put the card in your locker" is not the same.  So when an employee told her coworkers that she left union authorization cards in the locker as previously discussed, it was sharing information only, not inviting or soliciting the coworkers to sign the cards.  

As a result, the Board ruled that when the employer issued a verbal warning to the employee for soliciting in the workplace (OK perhaps that was over-egging the pudding as work was only "momentarily" interrupted) it violated the NLRA. Why? The Board ruled the employee could not have violated the employer's no-solicitation policy since she was not soliciting; she was only providing information.  So the real reason the employer fired the employee was because it knew she was sympathetic to the union.

So next time I tell you I left an invitation, some flowers, food or most anything on your desk or in your locker, don't think I'm actually inviting you to use or enjoy the item; I'm just telling you it's there. I'm just stating the facts: Jack Webb would be proud. 

This newsletter does not constitute the rendering of legal advice.  You should consult your company's legal counsel for guidance on employment matters. 


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