Informational Bulletin-12/2015

 

General Guidance regarding impact of inclement weather and business closings on wages for non-exempt hourly employees and exempt employees. (Please see our website for definitions of exempt employees)

 

We reserve the right to provide more detailed guidance on a case by case basis. You should also research any requirements under the Federal Fair Labor Standards Act by contacting the USDOL at www.dol.gov.

 

Non-Exempt hourly employees (minimum wage and overtime required)

Under Connecticut wage and hour laws, an employer is not required to pay a nonexempt employee for time in which he or she performs no work, even if the employee was scheduled to work and was sent home early. This means that if a business decides to shut down and send employees home in the middle of the shift, the employer is permitted to pay nonexempt employees only for the time spent working. If the business is closed the whole day or for entire shifts, employees do not have to be paid unless otherwise agreed to the employees and employer or by a collective bargaining agreement.

Exempt salaried employees (no overtime required)

A salary reduction may or may not result in loss of an exemption, depending on the circumstances.

 

WEATHER-RELATED SCENARIOS-Exempt employees only

 

(1) Business opens, then closes sometime during the day and sends employees home:

In this case, the exempt employees must still be given their full salary because they performed work during that day, however minor it may have been. No deductions can be made from the exempt employees’ fringe benefit banks to cover the time off.

 

(2) Business decides not to open for the day (or work shift), notifies employees not to report for work:

If a business decides not to open at all because of the weather and instructs employees to stay home, salary reduction for the absence is not permissible for exempt employees under section 31-60-14(b)(2)(A)(i). An employer’s decision to close the business is considered to be an “operating requirement of the employer”.

A problem arises when an employer forces an exempt employee to use a vacation day (or PL day, PTO day, etc.) to cover the salary for a day in which the employer instructs the employees not to report for work. It would appear that the full salary was paid, but section 31-60-14(b)(2)(A) states that “[n]o deduction of any kind” can be made when an exempt employee is absent because of a “lack of work occasioned by the operating requirements of the employer”. Since a deduction from a vacation bank would be a deduction of some kind, such a practice would be in violation of section 31-60-14(b)(2)(A)(i). Loss of the exemption would result.

 

(3) Business decides not to open for the day (or workshift), notifies employees not to report for work, but that they can choose to work from home:

If the employee decides to work from home, the employer must pay the full salary. If the employee decides not to work from home, the employer can make the employee use a fringe benefit day to bring week’s wage to the full salary amount.

 

(4) Business decides to be closed for the day (or work shift), notifies employees not to report for work, but says they can choose to report to a specified alternate worksite such as another company facility:

In this scenario, an exempt employee is offered an opportunity to work, although not at the usual location. The employer has not excused the employee from working, but has only changed the location of work. If the exempt employee declines to work at the new location, the employer can make the employee use fringe benefits to cover the salary for the day.

Caution: An employer should not use this reasoning to circumvent the law requiring that no fringe benefit deductions can be made when an exempt employee is excused from work for weather-related closures. If the instruction to “(1) work at another location today or (2) use a vacation day if you decline” involves an unreasonable commute, the employee has not really been given a choice. For example, if the employee regularly works in Danbury and that location does not open because of snow, the designation of the alternate worksite as Putnam leaves the employee with no viable choice but to take a vacation day. We should not recognize this situation as one in which an employer should be permitted to force an employee to use a vacation day.

 

(5) Business is open but employee does not wish to come to work because of bad weather:

If a business is open despite the snow, an exempt employee might call in to say he or she will not (or cannot) come to work because of car problems, or perhaps out of fear of driving in marginal conditions. In this case, the employee asked for the day off for personal reasons. Salary reduction would be acceptable under section 31-60-14(b)(1)(B) of the Administrative Regulations. Advise the employer that in this scenario, it is important to:

(1) Document the request to demonstrate that the employee initiated the request for time off;

(2) Ensure that the employee does not call his or her voicemail or access email that day (a strongly worded written [and strictly enforced] policy prohibiting call-ins and log-ins on days off would suffice). The employee must perform no work on the day off in order for the employer to reduce the salary on the day in question without loss of the exemption. Call-ins and log-ins constitute working time;

(3) Reductions in salary for this type of event can only be made in

whole-day increments.

The alternative: The employee might also have asked to use a vacation day (or P.L. day, P.T.O, etc.). The employer could then choose to apply fringe benefits to the snow day because the employee initiated the request. Note: This is a different scenario from one in which the employer decides that the business will be closed. In that case the employer cannot use fringe benefits, but must pay the salary for the day.

 

SHORT VERSION:

 

  • Employer excuses exempt employee from work: No reduction in salary permitted, no fringe benefits taken to cover the time.

 

  • Exempt employee requests day off because of the weather: Reduction in salary permitted, or fringe benefits can be used to cover the time off.

 

  • Employer excuses exempt employee sometime during the day because of worsening weather: Full salary must be paid, no use of fringe benefits permitted.

 

  • Exempt employee asks to go home because of bad weather after starting work: Time off can be taken from fringe benefits, but employer must pay pro-rata portion of salary for the day to cover time actually worked. However, if the employee has exhausted vacation time (P.L. time, P.T.O, etc.), the employer must still pay the full salary because the employee worked that day.

 

  • Employer tells employee that the usual place of work will not open for the day, but that work can still be performed either at home or at some location other than the usual place of work: No different from a regular work day with regard to salary and fringe benefits (as long as work options are reasonable).