September 2015 Bar Bulletin
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September 2015 Bar Bulletin

Paying Employees for Inclement Weather Days

By Karen Sutherland

 

Your office closes due to flooding. Your office is open during a snowstorm, but some of your employees can't get to work. The air conditioning dies and you close the office at noon, but give your employees the option of working from home.

If your employees are not working under any of these scenarios, do you need to pay them for some or all of the workday? The answer is, "It depends." The primary factors to take into consideration are:

  • Is the employee exempt or nonexempt from the state and federal wage-and-hour laws?
  • Is the employer a public entity?
  • Did the employer tell the employee not to work or did the employee request time off because the employee could not get to work?
  • Does the employee have time available in a leave bank that could be used to cover the time off?
  • Is there a collective bargaining agreement (CBA) or other contractual obligation that covers this situation?

Each of these factors is briefly discussed below.

Exempt Employees in the Private Sector

Employees such as certain professional, managerial and administrative employees are exempt from some of the wage-and-hour laws, such as the overtime pay requirements.1 Generally speaking, in order to maintain their exempt status, exempt employees have to be paid their salary for any week in which they perform work; so, if there was an office closure for less than a full workweek, exempt employees would still get paid for the whole workweek.2

However, if an exempt employee requested the day off "for personal reasons other than sickness or accident,"3 such as the inability to get to the office due to a weather emergency, then the employer may deduct the employee's pay for that day from the employee's salary.

Under state law, private sector employers are not allowed to make partial-day deductions from exempt employees' salaries even if the employee takes part of a day off for personal reasons unrelated to sickness or accident.4 As a result, if an exempt employee came to work at 9 a.m. and left at 10 a.m. out of concern that the roads would become impassable later in the day, the employer cannot deduct the employee's pay for the partial-day absence.

Exempt Employees in the Public Sector

Exempt employees "directly employed by a county, incorporated city or town, municipal corporation, state agency, institution of higher education, political subdivision or other public agency and including any department, bureau, office, board, commission or institution of such public entities"5 are subject to different wage-and-hour rules than private sector employees.6

Public sector employers may deduct for partial-day absences in any increment, including increments of less than an hour, "when the pay system is established according to principles of public accountability, under which the public employee accrues sick or personal leave and permits leave without pay for absences of personal reasons or illness or injury of less than one day when accrued leave is not taken."7

As a result, if an exempt public employee came to work at 9 a.m. and left at 10 a.m. out of concern that the roads would become impassable later in the day, the employer would pay the employee for the time spent at work, but can take a deduction from the employee's salary for the partial-day absence.

Nonexempt Employees

Generally speaking, nonexempt employees who are paid on an hourly basis would not need to be paid for time they do not work, so the employer would not need to pay a nonexempt hourly employee if the office was closed or if the employee was unable to get to work.

However, there may be contractual obligations that require nonexempt employees to be paid for time off due to inclement weather, as discussed below.

Deductions from Leave Banks

If a private sector employer has a bona fide leave bank, then an employer can make full- or partial-day deductions from exempt employees' leave banks.8 However, if the leave bank was designated for certain specified types of leave (such as sick leave), then it would not be appropriate for the employer to deduct from the leave bank on an ad hoc basis for a type of leave (such as a snow day) that did not qualify.

Under state law, private sector employers cannot make deductions from leave banks in increments of less than an hour for the first hour, but may make deductions in increments of less than an hour for subsequent hours (e.g., a deduction for 75 continuous minutes of leave is acceptable).9 The wage-and-hour laws do not set minimum increments of time for deductions from leave banks for weather emergencies for nonexempt employees. A public sector employer may deduct from exempt employees' leave banks for partial-day absences in any increment, including less than an hour.

CBAs and Other Contractual Obligations

If an employer has collective bargaining agreements, agreements with individual employees, or binding policies that include provisions for inclement weather, minimum pay for showing up for work, limitations on changing an employee's schedule, or a fixed salary for a fluctuating workweek for nonexempt employees,10 then those specific obligations would apply to absences due to inclement weather if they are more favorable to the employee than what the wage-and-hour laws provide.

The Bottom Line

Clear policies on weather emergencies and office closures can prevent wage-and-hour issues and reduce the likelihood of employees feeling they are being treated unfairly by ad hoc decision-making.

Karen Sutherland is the chair of the Employment and Labor Law Practice Group of Ogden Murphy Wallace, PLLC. She can be reached at ksutherland@omwlaw.com. The information in this article is a brief overview of a complex subject, does not constitute legal advice, and should not be relied on.

1 See, e.g., WAC 296-128-500.

2 See, e.g., State of Washington Department of Labor & Industries Employment Standards Administrative Policy No. ES.A.9.1, Question Nos. 1 4, and 5, online at http://www.lni.wa.gov/WorkplaceRights/files/policies/esa91.pdf.

3 WAC 296-128-532(3)(b).

4 ES.A.9.1 at Question No. 6.

5 Id. at Question No. 22; WAC 296-128-533(2).

6 WAC 296-128-533; 29 CFR Part 553.

7 ES.A.9.1 at Question No. 22.

8 Id. at Question Nos. 15 and 16; WAC 296-128-532(6). Deductions from an employee's accrued leave time do not affect an employee's status as "salaried" within the meaning of the FLSA. Barner v. City of Novato, 17 F.3d 1256, 1262 (9th Cir. 1994).

9 ES.A.9.1 at Question No. 17.

10 See Inniss v. Tandy Corp., 141 Wn.2d 517, 7 P.3d 807 (2000), for a discussion of the fluctuating workweek practice.

 

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