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Jan 22, 2016

By Eric B. Meyer

Back when I had three kids — I took some liberties with snow days and the Fair Labor Standards Act.

I’m exempt of course (Executive exemption — like a boss!). For the kids, rather than worry about minimum wage or overtime, I just paid them in Pop Tarts. An honest day’s pay for an honest day’s work. Unless, they had dirty diapers. Then, I docked their pay.

Fast forward a few years. Now, I have four kids. So, with a big snow storm on the way, the older siblings can assume the position while the baby whips me up a hot toddy. OK, coffee.

I like to pretend that I’m not in New Jersey. Let’s call it international waters. But for you folks in the “real world,” there are some Fair Labor Standards Act and Family Medical Leave Act implications if your business closes for the impending snow. Let’s break ’em down:

Family and Medical Leave Act

If the employee would have otherwise taken the entire week off on FMLA leave, then the snow day would likely be treated like a holiday and can be charged as an FMLA day just the same.

If, however, your employee is using FMLA leave in increments of less than one week, the snow day will not count against the employee’s FMLA entitlement, unless you expect that employee to come to work. See 29 C.F.R. Section 825.200(h).

Fair Labor Standards Act

Non-exempt employees only get pai for hours worked. Therefore, if the office is closed for a snow day and the non-exempt employee does not work, the employee does not get paid. Easy peasy.

However, if that employee works remotely, then the employee should get paid for that time. So, ensure that you either:

  • Instruct your non-exempt employees not to work remotely; or,
  • Remind your non-exempt employees who work remotely to accurately track their time.

[Note: If a non-exempt in the first category ignores your instruction not to work remotely, you still have to pay that employee. However, you can also discipline that employee too]. Additionally, if a non-exempt employee is required to remain “on-call,” you must pay that non-exempt employee (unless the employee can use that time for their own personal benefit).

Exempt employees who performed any work during the week in which the office is closed for a snow day get paid their full wages for the week. If the exempt employee has accrued some paid time off, you may require the exempt employee to use PTO for the snow day.

However, if the exempt employee has no accrued PTO, you cannot dock pay. Deducting an exempt employee’s wages may convert that employee’s status to non-exempt, and expose you to liability for overtime.

Now, get over here and shovel my driveway. I’ll have the little one whip you up some, err, coffee too.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.