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Deducting Pay for Weather-related Absences, or Baby, It’s Cold Outside and I Don’t Want to Come to Work
Several parts of the US have been hit hard with bad weather or adverse weather emergencies, preventing many employees from getting to work. Sometimes, it’s so bad that the office is without power or enough personnel to stay open. Under either circumstance, do you still have to pay your employees? Several Department of Labor Opinion Letters (e.g., FLSA2007-6, and FLSA2005-46, and FLSA2005-7) helped to clarify this confusing issue. While DOL Opinion Letters aren’t a substitute for the rule of law, the courts have generally been deferential to their interpretation of FLSA and labor law. FLSA doesn’t require employers to provide vacation time; therefore, leave programs may be administered freely by employers as long as they do so in a nondiscriminatory way. If the employee is exempt: you can deduct a full-day’s pay from an exempt person’s salary for a missed day IF the employee chooses not to report to work or suffers from attendant transportation difficulties when the office remains open, or you can require the employee to use vacation or accrued paid leave. Deducting for partial-day absences can destroy the employee exemption under the salary basis rule. The DOL considers an absence due to adverse weather conditions when the employee chooses not to report to work as “an absence for personal reasons.” If an employee, under this condition, misses 1 ½ days, you may deduct only for the full-day absence and the employee must receive a full-day’s pay for the partial day worked in order for the employer to meet the salary basis rule. If the office closes by choice of the employer, you can require exempt employees to take vacation or accrued paid leave, but you cannot insist on leave without pay. When the employer closes operations due to a weather-related emergency or other disaster for less than a full workweek, then the employer must pay an exempt employee “the full salary for any week in which the employee performs any work without regard to the number of days or hours worked.” See 29 C.F.R. §541.602(a) and Kennedy v. Commonwealth Edison Co., 242 F. Supp. 2d 542 (C.D. Ill.2003). If the employee is non-exempt: you may deduct for partial or full day absences from a non-exempt person’s pay, or deduct from their vacation or accrued leave bank.
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Appropriate Response to Harassment Complaints Employers have a legal obligation to both prevent workplace harassment and to take swift action to remedy it when it occurs. Title VII of the Civil Rights Act prohibits harassment or a workplace environment that is abusive to employees because of their race, color, gender, religion or national origin. The Americans with Disabilities Act (ADA) has also been interpreted to prohibit harassment based on disability. While the most common form of workplace harassment involves sexual harassment, the same response by the employer is expected when the offensive behavior is aimed at any legally protected class. Most states also have laws on the books regarding workplace harassment. The first important step any employer can take to prevent workplace harassment is to have an anti-harassment policy in place and enforce it. The second and equally important step is to train managers and employees to understand what appropriate and inappropriate workplace conduct is. Lastly, each employee should understand the company’s complaint procedure and who they should contact to lodge a complaint. Do you know what your obligations are if your policy has been violated? Do you know how to conduct a thorough and prompt investigation? What appropriate disciplinary actions should be taken and what should you avoid? How do you publicly reinforce the organization’s commitment to its harassment policy if violations occur? The courts and the Equal Employment Opportunity Commission (EEOC) generally agree that an employer’s prompt and effective response to stop and prevent additional harassment is key to limiting liability. Any disciplinary action to the offender must take into account the nature and severity of the misconduct, and is only one step in your prevention and resolution strategy. Write a strongly worded anti-harassment policy, enforce it, train all employees about the policy, encourage complaints, resolve any complaints quickly, and follow-up on any remedial action taken that is "reasonably calculated" to stop the harassment and prevent future occurrences. That’s not to say to the satisfaction of all parties involved, but any process that is swift, fair and impartial has a greater chance of being accepted. By taking these actions, you can help prevent liability and, just as importantly, create a productive workplace for everyone.
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