Pay Freeze? Winter Weather and the FLSA

By: Bill Pokorny

February 06, 2019

Oh the weather outside is frightful …

No, seriously, it’s actually dangerous here in Chicago. Since much of the city seems to be on lock-down today as we all try not to freeze to death, this seems like a good time to review the rules relating to employee pay during weather-related shut-downs.

For non-exempt employees, the rule is pretty simple: Unless you have promised to do otherwise, you only have to pay non-exempt employees for the hours that they actually work. If you are shut down due to weather, you are not typically obligated to pay non-exempt employees. If you choose to pay for time that the employees do not actually work, you do not have to count the hours of non-work for overtime purposes, or include the pay in the “regular rate” calculation for computing overtime.

Exempt employees are another story. Most employees who are exempt under the executive, administrative, and professional exemptions have to be paid on a salary basis, meaning that they receive the same pay each workweek, regardless of their work hours. You can deduct from pay if an employee does not show up to work for a full day for personal reasons, but that exception does not apply if the employer elects to shut down for weather, lack of work, or other reasons. As long as the employee is ready, willing, and able to work, they are entitled to their full pay for the week.

You can require exempt or non-exempt employees to draw down any available vacation, PTO or personal time to cover the hours missed due to your shut down. However, once exempt employees are out of paid time, you still have to pay them their full salary for the week.

If you are open for business but your exempt employees decide on their own that they prefer not to brave the cold, you might be able to take deductions for any full days missed. Just beware – most exempt employees these days have at least some ability to work from home. Even if they are just taking a few calls or replying to e-mail, that counts as work, and if they work part of the day, they are entitled to pay for the full day.

As always, mileage may vary depending on your jurisdiction, and be sure to check and follow your policies, handbooks, agreements, etc.

Stay warm!