Q: I work for a mid-sized company in Nassau County and was sent home early twice in the past few weeks due to the terrible weather. While my office officially closed and we were told to leave by the office manager, my colleagues and I were informed that we would not be paid for the remainder of the day and if we wanted to be paid we had to use vacation time for the closure. Is it legal for a company to withhold pay on days when it decides to close the office early?
A: The answer to your question depends on whether you are covered by federal overtime requirements in the Fair Labor Standards Act (FLSA). Salaried employees who hold executive, administrative or professional positions are considered "exempt" from the FLSA and are not subject to reductions in weekly salaries because of closures due to inclement weather. However, the employer has the right to charge exempt employees' accrued paid time off (PTO) for any work an employee misses due to the closure. If an exempt employee does not have enough accrued PTO to cover the closure the employer must still pay the employee's full weekly salary.
On the other hand, hourly employees who don't hold executive, administrative or professional positions are covered by FLSA. These "non-exempt" employees are only entitled to compensation for the hours they actually work. The employer can, if it chooses, provide the option of allowing non-exempt employees to charge missed time due to weather closure to their PTO accruals.
Employers and employees should also be aware of New York's "call-in pay" regulation for non-exempt employees. That regulation requires an employee who reports to work to be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage. The New York Department of Labor has narrowly interpreted this provision to only require additional payment where an employee's wages for the workweek are less than the minimum and overtime wage rate for all hours worked plus any call-in pay owed. In a 2009 Opinion Letter, the New York Department of Labor stated "if the amount paid to an employee for the workweek exceeds the minimum and overtime rate for the number of hours worked and the minimum wage rate for any call-in pay owed, no additional payment for call-in pay is required."
Both employers and employees should know their rights and obligations during a weather related closure. It is important to consults an attorney regarding any questions you may have regarding federal or state wage and hour statutes.
Max H. Sicherman is an Associate in the firm’s Labor and Employment Law practice in the New York City office of Meyer, Suozzi, English & Klein, P.C. Mr. Sicherman represents individuals and unions, both locally and nationally, in all aspects of federal and state litigation.