Provided by: Jennifer Kirschenbaum, Esq.
February 23, 2021
Lot's of snow this season. I've been forced to shutter a few days because my staff refuses to come in to support. Do I have to pay them if they refuse to work?
Appreciate the advice,
First question, do you have a practice policy that covers snow days? If so, you have to follow the policy you've set, so long as its legal.
Second question, what's legal? The Fair Labor Standards Act, which applies to all practices with more than 2 employees, generating more than $500k of revenue, gives some guidance on snow days by referencing inclement weather where the employer is closed as an example of a day's pay you cannot deduct for. (See below).
The key statement in the above is "where the employer is closed" - if you elect to close the office for inclement weather, whether in advance (night before) or morning of, under the Fair Labor Standards Act the rule of law stipulates you have to pay. But, in the fact pattern you state you were forced to shutter because employees are refusing to work, which is interesting. Depending on timing of the mutiny and your requests for coverage, I can see an argument that the practice, in fact, did not close, and instead employees refused to come to work, but before making that determination its important to dig in for a complete assessment, including proper documentation. Let us know if you would like help with the process.
Deductions for partial day absences generally violate the salary basis rule, except those occurring in the first or final week of an exempt employee's employment or for unpaid leave under the Family and Medical Leave Act. If an exempt employee is absent for one and one-half days for personal reasons, the employer may only deduct for the one full-day absence. The exempt employee must receive a full day's pay for the partial day worked. Other examples of improper deductions include:
- A deduction of a day's pay because the employer was closed due to inclement weather;
- A deduction of three days pay because the exempt employee was absent for jury duty;
- A deduction for a two-day absence due to a minor illness when the employer does not have a bona fide sick leave plan, policy or practice of providing wage replacement benefits; and
- A deduction for a partial day absence to attend a parent-teacher conference.
Employees who work for certain businesses or organizations (or "enterprises") are covered by the FLSA. These enterprises, which must have at least two employees, are:
(1) those that have an annual dollar volume of sales or business done of at least $500,000
(2) hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies