Here in Boston we are still busy digging out from the recent snowstorm that shut down much of Massachusetts. Other parts of the Northeast and of the country are also facing blizzards, ice and rain storms this winter, but the weather disturbances don’t stop with winter. Indeed, every year hurricanes, floods, tornados, blizzards, ice storms, and other weather disruptions wreak havoc across the nation—disrupting lives, closing workplaces, and raising expenses for businesses.
A properly conceived inclement weather policy can, however, provide some shelter to employers and enable them to stay ahead of the practical wage and hour and safety issues that arise during a weather crisis or natural disaster. Below are the top 10 factors that savvy employers will want to consider in drafting an effective inclement weather policy.
GENERAL ISSUES
1. What constitutes inclement weather?
“Inclement weather” is typically defined in inclement weather policies as a weather condition that causes a major disruption to transportation and the operation of businesses and schools in the relevant area. Some examples of inclement weather include: hurricanes, floods, blizzards, heavy snow, ice storms, and excessive heat.
2. Who is authorized to determine whether the business will close or have a delayed opening or early closing?
Who will be in charge of making decisions regarding whether the business will be closed or have a delayed opening or early closing can be an important consideration—particularly where key management is not on site. A good inclement weather policy specifies who is authorized to make decisions in this regard so that there is no confusion among the workforce on this issue.
3. How will work responsibilities be covered?
For many businesses, such as hospitals and certain manufacturing enterprises, complete closure is not an option. As such, employers are well advised to think ahead and identify operations that will need to be covered in the event of a business closure and then determine which key personnel will be needed to cover them. Employers should beware of being overly demanding of non-essential workers during a weather emergency because of the negative perception and potential for damage to employee relations. Depending on the number of key personnel that are identified, it may make sense to have a separate inclement weather policy for such essential employees, as the expectations of them likely will be significantly different than those of the rest of the workforce.
4. How will employees be contacted in the event of an inclement weather incident?
There are a variety of methods for notifying employees of business closures, delayed openings, and early closings, such as recorded messages, phone trees, email, social media, via the company’s website and intranet, and voicemail messages. However, many of these methods are not practical or effective in the event of power failures. Good inclement weather policies notify employees in advance of what to expect in this regard. They also remind employees of how they should alert their employers if they are late or unable to come to work due to weather, including who to contact.
5. Will employees be permitted to work remotely, bring their kids to work, or make up missed time?
Even though a business may not be forced to close completely due to inclement weather, schools and daycare facilities may nonetheless still be closed. Therefore, employers should consider in advance whether they will permit employees to bring children to work with them and if so, under what conditions. Other factors to consider and address in an inclement weather policy include whether employees will be allowed to work from home, whether non-exempt employees who miss work will be allowed to use paid leave or make up hours at another time, and whether exempt employees will be required to use paid leave time for missing work.
Whether exempt or non-exempt, if employees work from home during inclement weather, the employer must pay the employees. Employers should specify in their inclement weather policy who can work from home, when they can do it, how they should report what work they are doing, and how they should record the time they spend working remotely. Also, employers should address general remote work requirements, such as availability and productivity, and coordinate with any existing remote work or telecommuting policy.
6. What if there is a state of emergency?
States of emergency are declared only in extreme circumstances. Generally, states of emergency only include requests that people stay off roads or that businesses close. States of emergency do not afford any pay protection to employees or automatically excuse any employees from reporting to work, absent a company policy to that effect.
Good inclement weather policies emphasize employee safety during states of emergency. Discipline of non-essential employees for not reporting to work during a state of emergency should be discouraged.
7. How will the inclement weather policy be communicated to employees?
The most obvious method of educating employees about the inclement weather policy is to include it as part of employee handbook. Consideration should also be given to providing a refresher on the policy at the beginning of any seasons when inclement incidents are likely to occur. Employers may want to also provide a reminder to employees when severe inclement weather is forecast.
8. What are the requirements for paying non-exempt employees?
Most businesses are covered under the Fair Labor Standards Act (FLSA), which is the federal law that provides guidelines and restrictions for paying both exempt and non-exempt employees. Under the FLSA, employers are only required to pay non-exempt employees for hours that the employees actually work. This is true even if the employer voluntarily closes its doors for the day, or if it delays opening or closes early. Note: An exemption to this rule applies in some states where, as discussed below, reporting pay is required. Therefore, in the absence of a contract, collective bargaining agreement, or reporting pay requirement, employers are not required to pay non-exempt employees if inclement weather causes a business closure, delayed opening, or early closure.
Despite the fact that employers are not required to pay non-exempt employees for time spent not working due to inclement weather, employers can make whatever rules they want in this regard for non-exempt employees—meaning that if they want to pay their employees even if the business isn’t open, they may. Employers may also permit non-exempt employees to use paid leave time when the office is closed and to make up missed hours at other times. Good inclement weather policies address these issues.
9. What are the reporting pay requirements for non-exempt employees?
A number of states, including Massachusetts, California, Connecticut, Washington D.C., New Hampshire, New Jersey, New York, Oregon, and Rhode Island, have reporting pay laws that require employers to pay employees a minimum amount when they report to work as scheduled, even if no work is done or if the employees go home early. For example, in Massachusetts, when an employee is scheduled to work three or more hours and reports for duty at the time set by the employer and then that employee is not provided with the expected hours of work, the employee shall be paid for at least three hours of work on such day at no less than the basic minimum wage. For example, if the employee is scheduled to work eight hours at $10 per hour but is sent home after two hours, the employee must be paid two hours at $10 per hour, then one more hour (to make three) at minimum wage.
Some state reporting pay laws apply to all non-exempt employees, while others apply only to those scheduled to work a certain number of hours. Some states require reporting time to be paid at the regular rate, while others require only minimum wage for the time beyond the time worked. Some states, such as California, have exceptions for “acts of God,” which could mean they do not apply during inclement weather. And some states, such as New Hampshire, have an exception for “good faith efforts” to notify employees not to report. Employers should familiarize themselves with any reporting pay requirements that may apply in the states in which they do business and be sure that management is educated on these requirements and that the requirements are addressed in the inclement weather policy.
10. What are the requirements for paying exempt employees?
Inclement weather policies should address pay issues with exempt employees as well. Under the FLSA, employees who are exempt from overtime requirements earn a full day’s pay if they work any part of the day, regardless of the quality or quantity of the work performed. If the employer chooses to close the business because of inclement weather and it was the employer’s explicit decision to close, and the exempt employee was ready, willing, and able to work, the employee must be paid. Under the FLSA, if employees are “ready, willing and able to work, deductions may not be made for when work is not available.” 29 C.F.R. §541.602(a). However, if there is an entire workweek during which the exempt employee does not perform any work, exempt employees need not be paid for that workweek.
An employer with a bona fide leave plan may direct exempt employees to take paid time off, according to U.S. Department of Labor Opinion Letter, FLSA2005-41. Employers may force exempt employees to use paid time off for all or part of the day as long as the employees receive their full pay for the workweek. However, if the employee does not have any accrued time, the employer needs to pay him or her for the day or require the employee take advanced leave time. Deductions from an exempt employees’ pay when the business is closed for inclement weather are not permissible because such “docking” can jeopardize the employee’s exempt status.
If the business stays open despite inclement weather and the employee works any part of the day, the employee must be paid for the full day. However, if the business stays open and the employee elects not to come in at all or come in late or leave early because of weather or transportation issues, the employer may deduct accrued leave time in full or partial day increments as long as the employee receives his or her full pay for the week. This is because such missed time is for the employee’s personal reasons and deductions can be made from leave time in full or partial day increments without jeopardizing the exemption, according to the U.S. Department of Labor Opinion Letter, FLSA2005-41.
Isolated or inadvertent deductions from pay do not result in the loss of the exemption if the employer reimburses the employees for the improper deductions. 29 C.F.R. §541.603(c). Moreover, if the employer has a clearly communicated policy (typically referred to as a “safe harbor” policy) that prohibits improper deductions and a complaint mechanism for exempt employees to use if improper deductions are made, the employer will not lose the exemption if it reimburses employees and makes a good faith commitment to complying in the future. 29 C.F.R. §541.603(d). Employers should be sure to include or cross reference such “safe harbor” policies in their inclement weather policy.
Diane M. Saunders is a shareholder in the Boston office of Ogletree Deakins.
