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 because...it 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!
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