Employers Take Note: Snow Days, FMLA and the FLSA
Snow days can be a nice respite from a busy week, but they are also the perfect opportunity to remind Employers to be careful when calculating wages under the Fair Labor Standards Act ("FLSA"), and chargeable days against Family and Medical Leave Act ("FMLA") leave.
The FSLA first.
Putting aside any provisions of a Collective Bargaining Agreement ("CBA") or individual employment contract, non-exempt workers are paid only for the time they actually work. So, if they perform no work on a snow day, they do not get paid for that day. If they do work, or if they are expected to work, they need to be paid for the hours worked and those hours will count toward overtime obligations.
If an Employer is concerned about incurring overtime liability and does not want a non-exempt employee to work on a snow day, the Employer should issue instructions to that effect. If the employee nevertheless does work, he or she must be paid for the time and the time will count towards the overtime calculation; however, the employee may be disciplined for violating the Employer's instructions.
Exempt workers are a little more complicated. They must be paid the full week's wages, even if they do no work on the snow day. Additionally, they can be expected to work on a snow day without any additional compensation and, of course, they do not get overtime.
If an exempt worker has available paid time off ("PTO"), the employer may require the exempt employee to use it for a snow day if the employee will be doing no work. If an exempt employee has no banked PTO, the Employer may not dock pay, even if the employee does not work. Doing so risks converting the employee to non-exempt status and bringing overtime pay into play.
Snow days can complicate the calculation of time off under the FMLA. Qualifying employees are entitled to 12 weeks of unpaid time off in any year. If an employee on FMLA is taking leave in increments of a week or more and would have been out of work regardless of the snow day, the Employer may count the snow day against the employee's available FMLA leave. If the employee is taking FMLA leave in less than weekly increments, the Snow day may be charged against available FMLA leave only if the employee would have worked that day but for the inclement weather.
Of course, where there is a CBA or employment contract that deals with pay on snow days, that must be consulted.
So while many may be home enjoying an otherwise non-scheduled day home, Employers need to be aware, and careful, of how they treat snow days when it comes to their employee's pay.
If you have any questions, or would like additional information, please contact Bob Small, Partner in Reger Rizzo & Darnall's Employment Practices Group, at 215.495.6541, or via email at email@example.com.