Thursday, November 10, 2005

DOL Issues Guidance Regarding the Effect of Natural Disasters or Inclement Weather on FLSA Salary Exemption

The Department of Labor yesterday released two Opinion Letters regarding the effect that an employer's response to natural disasters or inclement weather will have on the exempt status of the employer's employees.

Section 13(a)(1) of the FLSA provides a minimum wage and overtime pay exemption for executive, administrative, and professional employees.  One test for the exemption requires that the employee be paid on a salary basisAn employee is considered "salaried" if s/he “regularly receives . . . a predetermined amount . . . [which] is not subject to reduction because of variations in the quality or quantity of the work performed.”   Deductions may, however, be made when the employee is absent from work for one or more full days for personal reasons, other than sickness or accident.  However, if an employee is “ready, willing and able to work, deductions may not be made for time when work is not available.”

In Opinion Letter FLSA 2005-41, an employer asked whether an employee's exempt statuts would be affected if, during inclement weather or natural disasters, the employer directed the employee to take vacation or leave without pay.  The DOL answered that if the employer closes the office, the employer may require an employee to use vacation time, but once vacation time is exhausted, the employer must continue to pay the employee his/her regular salary.  If the employer's office remains open but an employee fails to report to work for a full day or more (such as on a heavy snow day), the employee may be placed on leave without pay for the days s/he is not at work.  However, if the employer's office remains open and an employee fails to report to work for less than a full day (i.e., arrives later due to heavy snow), the employer may not make any deduction to the employee's salary.

In Opinion Letter FLSA 2005-46, the DOL reiterated that "an employer that remains open for business during adverse weather emergencies may make deductions, for full-day absences only, from the pay of an otherwise exempt employee who chooses not to report for work for the day(s) because of the adverse weather emergencies, and treat any such full-day absence(s) as being for 'personal reasons' under the applicable regulations."

Other DOL Wage-&-Hour Opinion Letters released yesterday:

2005-42 (academic advisers and intervention specialists under Section 13(a)(1)).
2005-43 (aviation museum curator under
Section 13(a)(1)).
2005-44 (carpet/furniture cleaning business and Section 7(i)).
2005-45 (staffing manager
under Section 13(a)(1)).

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