If it’s not snow or ice, it’s rain or wind. Any of these elements that affect the weather can also affect employee punctuality and attendance. It is important for college and university administrators to understand what their rights and duties are when it comes to paying an employee who arrives late, or doesn’t report to work at all, because of bad weather. A failure to pay the employee properly could result in an audit, hefty penalties or even a lawsuit.
Any college campus can be affected, in one way or another, by the weather. How each person handles weather-related issues is often a personal choice. However, when it comes to employment and compensation practices, how an administrator handles weather-related tardiness and absenteeism can have a serious impact on that institution’s business and payroll practices.
Generally speaking, any employer has a right to set certain expectations for its employees regarding hours of employment as well as tardiness and absenteeism. Depending on the nature of the business, tardiness and absenteeism can have a severe impact on the employer and its customers. For example, employees in retail must be ready to work when the store opens. So in that case, arriving late for work or not arriving at all will seriously impact the business and its customers. Similarly, at a college or university, it is also vital that employees work the hours required by the university or dictated by class schedules. To do otherwise could disrupt classes and students’ schedules and otherwise affect the entire system.
Despite all of this, weather is out of our control, and in certain parts of the country, weather-related absences are inevitable. Unfortunately, many of us don’t think about such absences until they wake up and look out the window to find snow-covered roads and other driving hazards. Because such weather conditions inevitably lead to tardiness and absenteeism, administrators must understand how to compensate employees who miss work due to inclement weather and, better yet, should have policies in place to address such absences.
The first question an administrator must ask when dealing with pay practices concerning weather-related tardiness and absenteeism is whether the employee is exempt or non-exempt. In other words, do the overtime provisions of the Fair Labor Standards Act apply to the employee or is that employee exempt from the overtime provisions of the act?
The Fair Labor Standards Act (FLSA) is the federal law that governs minimum wage, overtime pay and other wage payment issues for full-time and part-time employees in both the private and public sectors. Generally speaking, employees who are eligible for overtime pay under the FLSA tend to be hourly wage earners. These employees are referred to as non-exempt employees because the overtime provisions of the law apply to them. Non-exempt employees are required to keep accurate records of their time and are paid only for the hours they actually work. So, it is permissible to reduce, or “dock” the pay of an hourly, non-exempt employee who is tardy or misses work completely because of bad weather as long as they are paid for the hours actually worked. It becomes more difficult, however, when dealing with exempt employees.
Employees who are exempt from the overtime provisions of the FLSA generally are paid a salary of at least $455 per week and are employed in some kind of executive, administrative or professional capacity. Because of the nature of their employment relationship, the college or university may not reduce, or dock, the pay of exempt employees except under very limited circumstances. However, one circumstance in which the administration is permitted to reduce an exempt employee’s salary is where the employee is absent from work for a full day because of inclement weather. The question of reducing the salary of these exempt employees turns on whether the institution was open for business on that day. Where, in fact, the school was open for classes and the exempt employee failed to report to work because of the weather, the administration may reduce the salary for one full day without incurring the wrath of the Department of Labor ? the agency that enforces the Fair Labor Standards Act. Such a weather-related absence would be considered to be an absence for personal reasons and, therefore, would fall within the exception to the rule against reducing the salary of exempt employees. Consequently, such a reduction of salary would not affect that employee’s exempt status. Conversely, if classes are cancelled due to inclement weather, then the exempt employees must be paid their regular salary for that day.
The situation becomes a bit more difficult when an exempt employee is late for work due to inclement weather. While an employer is permitted to dock the pay of the non-exempt employee who is tardy, that is not the case for exempt employees. The law does not permit partial day deductions for exempt employees for any reason. What is permissible, however, is requiring the employees to use accrued paid time off for the time missed due to tardiness or absenteeism. Federal law does not require employers, including higher educational institutions, to provide paid time off to their employees. Therefore, employers who choose to provide paid time off are free to implement certain rules about how and when the time must be used. For this reason, many institutions faced with weather-related tardiness or absenteeism may permit, or require, employees to use accrued paid time off to cover the missing time. While this is not always possible, it does tend to alleviate some of the headaches associated with such weather-related absences.
In a university setting, the typical exemptions under the FLSA would apply to executive, administrative and professional employees who meet the salary and duties tests set forth in the regulations. The one exception to the rule is with regard to professors and other teachers as defined by the FLSA. While teachers, including professors, are clearly exempt from the minimum wage and overtime provisions of the law, the regulations specifically state that the compensation requirements of a minimum salary level and payment on a salary basis do not apply to employees engaged as teachers. Therefore, under the FLSA, professors and teachers employed by a university or some other educational establishment are somewhat of a hybrid class. On the one hand, like exempt employees, they are not entitled to overtime pay while, on the other hand, like non-exempt employees, their wages are subject to reductions for working less than a full day. This, of course, is assuming that the teachers or professors are not covered by a collective bargaining or other agreement that alters or otherwise affects the payment of wages.
While all of this may be a bit confusing for administrators, those who have a regular practice of improperly reducing wages or failing to pay wages because of tardiness or absenteeism due to inclement weather could find themselves facing some rather devastating consequences. Should an employee or group of employees file a complaint or the Department of Labor conduct an audit of the institution’s pay practices, and it is found that the administration regularly engaged in improper pay practices, that institution could lose the exemption of not only the employee who complained, but all of the employees in that job category. It could then be liable for back pay and overtime for all of those employees affected by the improper pay practices. For these reasons, all educational institutions need to be extremely cautious when making any decision that involves reducing the regular salary of an exempt employee.
If an administrator has any doubts about how to handle salary reductions for exempt employees, consulting with labor and employment counsel before making such decisions could help avoid unnecessary headaches and tremendous costs in the long run. It also would be prudent for such administrators to take preventive measures and work with legal counsel to develop policies and procedures for handling matters such as inclement weather before they arise.
One such policy is referred to as a safe harbor policy. Typically, this is a policy that states that employees should carefully examine each paycheck and if errors exist they should be brought to the attention of the employer so that the employer can remedy the situation. The law states that if an employer has a clearly communicated policy prohibiting improper deductions that includes a complaint mechanism, reimburses employees for any improper deductions, and makes a good faith commitment to comply with the law in the future, then the employer will not lose the exemption unless it willfully violates the policy by continuing to make improper deductions after receiving employee complaints.
Having a safe harbor policy in place serves as a reminder to employees that they are responsible for reporting errors in pay and safeguards the institution that makes isolated or inadvertent payroll errors.
Taking the time now to implement policies and procedures to deal with inclement weather and other compensation matters will help prevent confusion and costly errors in the future.
Terri I. Patak is Of Counsel in the labor and employment group at the Pittsburgh-based law firm of Dickie, McCamey & Chilcote, P.C. She can be reached at email@example.com.