Paying Non-Exempt Employees for Weather-Related Closures

Kelley Drye Client Advisory

Another blizzard strikes, forcing you to close shop early and send your employees home after only an hour’s work. Your hourly employees comply, but insist that they be paid for the entire day. Are you legally required to pay your employees for their regularly scheduled shifts if you close early due to inclement weather? The answer is: probably not. The New York State Department of Labor (“NYSDOL”) has taken the position that the state’s minimum wage order provision concerning call-in pay applies when an employer closes due to inclement weather. Under that provision, an employee must be paid at least four hours’ pay at the minimum wage on any day he is requested or permitted to work, unless his regularly scheduled shift is shorter than four hours. Thus, the call in pay provision would apply if an employee is sent home after an hour due to inclement weather.

Importantly, however, the NYSDOL takes the position (albeit a position expressed verbally and not in a written advisory) that the call-in pay owed for any given day can be offset by any other earnings during the week. The practical effect is that only those employees earning near the minimum wage will need to be paid call-in pay for employer closures. Take the following example:

Clare earns $10 per hour. Clare works eight hours on Monday, Tuesday, Wednesday, and Thursday. On Friday, Clare is sent home after one hour due to an impending snowstorm. Under the NYSDOL rule, Clare must be paid at least 36 hours at the minimum wage ($7.25 per hour) for the week – the 32 hours she actually worked Monday to Thursday, plus 4 hours’ call in pay for Friday – for a total of $261. However, because Clare worked 33 hours during the week and, at her hourly rate of $10 per hour, will earn $330, the call-in pay provision does not apply and Clare’s employer need not pay her for any hours missed due to the closure.
Thus, although you are free to pay your hourly employees for their regularly scheduled shifts when your company closes due to weather, in most cases, it will not be required.