With the crazy weather over the past seven days, many cities have closed city hall due to weather related issues. The next question that has arisen is whether they have to pay employees for the time that the offices are closed. Basically, it depends on whether the employee is exempt or non-exempt, as well as your city policy.
If the employee is a non-exempt employee (eligible for overtime) and the city office closes due to inclement weather, and the employee doesn’t work on those days, the city is not required to pay the employee for those days. See Fact Sheet #72: Employment & Wages Under Federal Law During Natural Disasters & Recovery, which states that the FLSA “does not require employers who are unable to provide work to employees due to a natural disaster to pay non-exempt employees for hours the employees would have otherwise worked.” The same is true if a non-exempt employee chooses not to come to work because of the weather when the city offices are open.
Also note that even if you pay a non-exempt employee for the time the office was closed, the payment is not considered in the calculations for overtime. Calculations for overtime only include hours actually worked, unless your written overtime policy states otherwise.
If this is an exempt employee (salaried and not eligible for overtime) and they work any portion of the week, the employee must be paid the full salary for the week, even if the office closes due to inclement weather (See 29 C.F.R. § 541.3 section 13(1)(a)). Cities can, however, require that the employee use vacation time for the time off due to bad weather, but if the employee is out of vacation days, the city cannot dock the employee’s pay. See 2005 DOL opinion letter.
If city offices are open, but an exempt employee chooses not to come to work because of the weather, an employer can dock their pay for a full day, because the employee is not considered “ready, willing, and able to work.” If the exempt employee only misses part of the day, the city cannot dock any pay, but can require the employee to use vacation time. In addition, under the FLSA if an exempt employee performs no work whatsoever in a given workweek, the city does not have to pay any wages for that week. This would be the case even if the city chooses to close for the entire week. (See 29 CFR § 541.602.)
The city also needs to think about the morale problem they may face if they pay exempt workers but not non-exempt workers. In addition, including inclement weather policies in the personnel manual, as well as reviewing these policies with employees periodically will prevent any surprises and confusion when bad weather looms.
For more information or sample policies on this or any other personnel related matters, please contact Andrea Shindlebower Main, personnel services manager, or Justin Hocking, personnel services attorney.