A Primer on Employee Pay and Inclement Weather

With the onset of the 2024 hurricane season, employers should soon have their hurricane preparedness plans finalized. A well-done hurricane preparedness plan will address a host of issues, including but not limited to: preparing facilities for severe weather, ensuring the business is properly insured, determining whether a business will stay open, and if the business stays open how it will be staffed. At some point, after decisions have been made about whether a business will stay open and if goods or people need to be moved out of harm’s way, questions relating to employee pay tend to arise.

One question that is frequently asked is “Should I pay exempt employees who miss work due to bad weather conditions?” An exempt employee is someone that is not entitled to overtime pay for hours worked over 40 in any workweek. When it comes to deductions from exempt employees’ salaries, it is easy to get into trouble. The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means if the work site closes for a partial week due to bad weather conditions (such as a hurricane), and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as PTO, and the employee has leave remaining, the employer can require the employee to use paid time off for any time the employee is away from work. If the employee does not have any remaining leave benefit, he or she must be paid.

If the work site remains open during inclement weather and an employee is absent (even if due to transportation issues), the employee can be required to use paid time off. If the employee does not have any paid time off remaining, the employer may deduct a full day’s absence from the employee’s salary. For a more detailed explanation visit dol.gov.

Other payroll issues that arise during and after a storm generally relate to what constitutes compensable time for non-exempt employees. The FLSA only requires that non-exempt employees be paid for the hours they actually work. However, those non- exempt employees on fixed salaries for fluctuating workweek(s) must be paid their full weekly salary in any week for which work was performed. Further, those businesses, such as hospitals and nursing homes, that remain open during a storm and require employees to remain onsite during the storm, may have to pay employees required to be onsite during a storm for all time they are at the employer’s place of business, as, depending on the specific factual circumstances, they may be considered to be “on call.”

Jennifer M. Fowler is a partner at Williams Parker Attorneys at Law and leads the firm’s Labor & Employment practice. She is board certified as a specialist in labor and employment law and, for more than 20 years, has been assisting businesses in effectively navigating an array of labor and employment matters. She can be reached at [email protected] or (941) 552-2558.