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Q AND A: Snow day means no pay for nonexempt employees

QUESTION: My company closed for a snow day. It didn't pay hourly workers for the day, but salaried employees were. The payroll department said that hourly employees only get paid for hours they actually work.

QUESTION: My company closed for a snow day. It didn't pay hourly workers for the day, but salaried employees were. The payroll department said that hourly employees only get paid for hours they actually work.

The company handbook, which spells out all company policies, is being updated after the fact to state that hourly employees will not be paid when the company is closed.

Is this discrepancy between hourly and salaried employees legal, and if so, is there anything we can do about it? Since it is now official policy we probably can't do anything about future company closings, but can we still get paid for this one day?

--No Pay, Snow Day

ANSWER: I am afraid you are out of luck. Even though your company's action seems unfair toward hourly employees, it is legal.

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Actually, the correct distinction here is not between hourly and salaried employees but between exempt and nonexempt employees, points out employment attorney Ellen Storch, counsel at Kaufman Dolowich Voluck & Gonzo in Woodbury.

By law, nonexempt workers, who are generally hourly but can be salaried, must be paid only for the hours they work. They must earn minimum wage and must be paid overtime when they work more than 40 hours in a week, but if they don't work they don't have to be paid.

"The law does not require employers to pay nonexempt employees when the workplace is closed due to inclement weather," Storch said.

Some companies either pay employees for the day or allow them to use a vacation day. And a union contract or employment agreement may stipulate that employees have to be paid when a business closes. But other than that, nonexempt employees are out of luck.

Exempt workers, by contrast, have to be paid because in exchange for their exemption from minimum wage and overtime, their salaries must be guaranteed, with certain limitations. They fall into the professional, executive, administrative or outside-sales categories.

"If they are available for work, but the employer doesn't have the capacity to open for business, they must still receive their full salary," said Irv Miljoner, who heads the Long Island office of the U.S. Labor Department.

If the business remains open and the exempt employee can't make it to work, then the employer can deduct the full day from the worker's salary, or can require the exempt worker to use accrued paid time to cover the absence, Storch said.

Q: My company chose to pay only the people who showed up for work during a recent snowstorm. And the store closed after four hours. People like myself who didn't work didn't get paid for any of the day even though the store was open for just four hours. Even if I had made it to work, I would have just worked a half a day. Those who showed up got paid for the full day. So is it legal to exclude those who didn't work? I am an hourly employee.

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--Illegal Exclusion?

A: The same answer applies as above. By law, nonexempt workers who face a shortened workday don't have to be paid for the lost hours, unless a union contract or other employment agreement says they must be. But as I mentioned before, the company can choose to pay them, as your company did for those workers who showed up. But their exempt counterparts, without question, must be paid for the full day, despite shortened hours.

------

ON THE WEB:

--"Compensable time" fact sheet:

http://www.dol.gov/whd/regs/compliance/whdfs22.pdf

--Exempt and nonexempt employees fact sheet: http://www.dol.gov/whd/regs/compliance/fairpay/fs17a (UNDERSCORE)overview.pdf

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