We’ve received several contacts from clients and other lawyers concerning employment issues that have come up as a result of the inclement weather. Here’s a few quick answers to common questions (under Georgia and federal law), but please let me know if you have others or need a more thorough explanation about anything covered here:
Q: Do I have to pay my employees if I close the company or facility?
A: Generally, no. For rank-and-file hourly employees, the company is not obligated to pay them for hours that are not worked. The company may compensate employees even if they don’t work, and may allow employees to use sick, vacation, or PTO time to keep their paychecks, but does not have to. Though strictly a business decision, allowing the use of sick, vacation, and/or PTO will likely be more effective at maintaining morale than telling employees they lose a day of pay without recourse because of the weather.
Keep in mind, however, that for employees who are exempted from the Fair Labor Standards Act (and who are paid a salary), the company is NOT permitted to deduct pay for hours/days not worked (in increments less than a workweek) and must provide the employee’s regular compensation.
Q: If my company/facility is open and employees don’t or can’t make it in, what are my options?
A: As long as the policy is uniformly enforced, an employer may treat a late arrival or no-show on a snow day just like it would on any other day. This is not to say that more “understanding” for a tardy or absence might not be justified or that appropriate circumstances cannot be evaluated on a case-by-case basis, but is simply to note that federal discrimination laws don’t take a break for cold weather either, so employers should be prepared to defend their decisions (and employment actions) with demonstrable, legitimate, non-discriminatory reasons.
Q: If my company was closed on Monday and Tuesday, and I need employees to come in on Saturday and Sunday do I have to pay them overtime? A: It depends. The Fair Labor Standards Act requires that employers pay non-exempt (hourly) employees at least one and one-half times their normal hourly rate for hours worked in excess of 40 in a workweek. The employer may define what 7-consecutive day (168-hour) period constitutes a workweek, and it may be different from a “pay period.” If hours not worked in a workweek can be made up within the same workweek without exceeding 40 hours in that workweek, no overtime would be due. But if the makeup work requires the employee to exceed 40 hours in a workweek (even if the previous workweek was less than 40 hours), then, yes, overtime pay would be due for those excess hours.
For example, assume that an employer’s workweek is Sunday to Saturday and the pay period is every two weeks. Assume also that the employer was closed on Monday and Tuesday (and employees did not work on those days), but open a regular 8-hour schedule on Wednesday, Thursday, and Friday. Monday and Tuesday would not count as “hours worked” (even if an employee uses sick, vacation, or PTO for those days), so the employees will work 24 hours (3 x 8 hour days) in this workweek. If the employer required hourly employees to report for work this coming Saturday and Sunday to make up for the lost time, the 8 hours on Saturday would bring the total for THIS workweek to 32 (no overtime would be due). The Sunday hours, however, would be attributable to the NEXT workweek, possibly pushing the employees to 48 hours for next week (assuming they also worked their regular 8 hour shifts next Monday through Friday) and obligating the employer to pay 8 hours of OT, even though the employee still only worked 80 hours over the total pay period.
Q: Do I face any liability if an employee is injured when I’ve “required” employees to report for work?
A: The fact that an injury occurs on a snow day will not, per se, affect an employer’s liability for an accident. If the employee is injured within the scope of her employment and the injury would be compensable by workers’ compensation on a normal day, it will almost undoubtedly still be compensable on a snow day.
Q: What if my employee injures someone else when I’ve “required” them to come in?
A: Again, the fact of the snow day will not, per se, affect liability, but as with any tort, will depend on whether the employer acted reasonably under the circumstances. If the employee is simply on the way to work when the accident occurred, as with any accident, the employer is unlikely to be held responsible for the third-party’s injuries. If, however, the employee had already reported for work or was otherwise acting within the scope of her employment, then the reasonableness of the employer’s decision to require work under the particular weather conditions would be a factor in the lawsuit.