By Adam B. Merrill
Last month there was enough rain in Texas to cover the entire state with eight inches of water. This tragic flooding is a timely reminder of storm-related issues that employers need to bear in mind when natural disasters strike. For example, the flooding in Texas forced numerous employers to close their offices, some for extended periods of time. Must these employers pay employees who missed work because of the floods?
The Fair Labor Standards Act (FLSA) provides an answer to this question, which depends on whether the employee is exempt or nonexempt.
Nonexempt Employees: Under the FLSA, an employer is generally not required to pay nonexempt employees for hours that they do not actually work. Thus, an employer is not required to pay nonexempt employees for days that they did not come to work or for days that the business was closed due to the flooding.
This does not apply to nonexempt employees who receive fixed salaries for fluctuating workweeks. These employees must be paid their full weekly salary for any week during which any work was performed, even if they missed some work due to the flooding.
Exempt employees: The FLSA requires an employer to pay an exempt employee’s full regular salary if the business closes due to inclement weather or other disaster for less than a full workweek. A private employer may, however, deduct the period of absence from the employee’s paid vacation or paid time off (leave bank), as long as the employee receives his or her full salary for the week.
If the business remains open but an employee cannot get to work because of the flooding, an employer can deduct an exempt employee’s salary for a full day’s absence. Indeed, the U.S. Department of Labor considers an absence caused by transportation difficulties experienced during weather emergencies, if the employer is open for business, as an absence for personal reasons. Under such circumstances, an employer may require an exempt employee to use his or her leave bank for the full day that he or she fails to report to work. If an employee is absent for one or more full days for personal reasons, the employee’s salaried status will not be affected so long as deductions are made from his or her salary for such absences.
A deduction from salary for less than a full-day’s absence is not permitted, but the employer may make a partial deduction from the employee’s leave bank. If there is insufficient time in the leave bank, no deduction from salary is permitted. Employers should be cautious when docking salaried employees’ pay. It may be more appropriate to require employees to “make up” lost time after they return to work, which is permissible for exempt employees.
If Texas employers are aware of and adhere to these guidelines, they will likely avoid FLSA claims related to the recent flooding.