Winter is upon us in the tri-state area, we've already been hit with quite a snowstorm and we're undoubtedly due for more as we head further into our coldest season. Although many employers have policies addressing inclement weather, some do not, and there are a few weather-related wage and hour issues that often get overlooked. Before having to shovel yourself out of a pile of something other than snow, familiarize yourself with some of your key obligations to employees during severe snowfall.
Many states, including New York and some surrounding states, have "reporting pay" obligations. In New York, for example, if a non-hospitality industry employer requests or permits a nonexempt employee to report for work on any given day, the employer must pay the employee for a minimum of four hours of work or for the employee's entire shift, whichever is less, at no less than the standard minimum wage. The employer must pay reporting pay regardless of whether the employee performs any work.
In New York, hospitality industry employers are also required to pay nonexempt employees reporting pay for at least three hours for one shift or the number of hours scheduled in a regular shift, whichever is less; for at least six hours for two shifts that total six hours or less, or the number of hours scheduled in a regular shift, whichever is less; and for at least six hours for three shifts totaling eight hours or less, or the number of hours scheduled in a regular shift, whichever is less. It is, therefore, imperative to know what your state's and industry's reporting pay requirements are and ensure that they are followed in the event that your employees are sent home early due to a snowstorm.
In addition, for those nonexempt employees who may be called in or placed on call to help with weather-related emergencies (e.g., maintenance employees or replacement staff to cover for other employees who cannot make it into work), it is equally important to be aware of the applicable federal and state laws that address working time, such as on-call time and the difference between "waiting to be engaged" and "engaged to be waiting." Generally, if an employee has to wait at a particular place or it is fairly certain that the employee will be called in, that employee must typically be paid to be waiting. If, however, that employee may use his or her time productively for his or her own reasons he or she is typically not deemed to be on working time and need not be paid.
Also, certain retail and fast food employers now need to keep New York City's Fair Workweek Law in mind when changing nonexempt workers' schedules at the last minute due to snow. Absent some very specific exemptions under the law, since late November 2017, certain retail and fast food employers have been required to provide employees with schedule change premiums for schedule changes with less than 14 days' notice. In fact, the DCA has found violations of the law when employers have chosen to send employees home early during some pretty terrible snowstorms without paying the required schedule day premiums – even when the employers thought they fell within one of the law's exemptions during a blizzard that led to the Governor's declaration of a state of emergency, an issuance of a travel advisory, MTA New York City Transit's Department of Subways operation under its cold weather plan, and winter storm conditions that were deemed dangerous. It is crucial, therefore, to pay any applicable schedule change premiums, unless you or your counsel is certain that one of the Fair Workweek Law's nuanced exemptions apply to the particular situation at hand.
An employer's obligations during snowstorms aren't limited to nonexempt employees. As for exempt employees, even if the business closes due to weather conditions, federal law prohibits employers from reducing an exempt employee's pay when he or she is ready, willing and able to work but no work is available. Because of this, the U.S. Department of Labor has taken the position that employers that close because of weather conditions must nevertheless pay exempt employees their regular salaries for any shutdown that lasts less than one full week.
Notably, however, the law does not prohibit an employer from requiring employees (including exempt employees) to work from home (where their job duties permit remote work) or to use accrued vacation time or other paid time off to cover any missed work due to a snowstorm. This should be addressed in a written policy. Even if addressed in your policies, however, certain exempt employees will not be able to work from home or that they will not have any vacation or paid time off remaining when a snowstorm hits. In that case, an exempt employee (unlike a nonexempt employee) must still must be paid his or her regular salary when the company is closed because of weather for less than a week.
Consider these wage and hour obligations when the next snowfall hits. They can save your snow day.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.