Q: In the event of a major snow storm, employees are given a choice to come to work, or to stay safe at home. If the employee chooses to not go to work, the hours are deducted from their PTO pool. There have been two instances (today was one – 10/30) when employees have been directed to not go to work. What, if any, are the laws for protecting earned time off (PTO) in these instances?
A: This is a timely question because we will be knee deep in snow before we know it. I asked Valerie Samuels, an employment lawyer with Posternak Blankstein & Lund LLP in Boston. She advises that the answer depends on whether the employee is an exempt or non-exempt employee. These terms refer to a federal law called the Fair Labor Standards Act (FLSA), which governs the payment of wages and overtime. Generally speaking, the FLSA divides employees into two categories: exempt and non-exempt. Exempt employees are typically paid on a salary basis and do not receive overtime. The majority of exempt employees are executives, professionals, or certain types of administrators. Non-exempt employees are paid by the hour and must be paid overtime for hours worked in excess of forty each week.
If the office is open and an exempt employee chooses not to come to work, the employer may deduct up to a full-days’ pay from his salary. The employer also has the option to deduct from accrued vacation or PTO time. But, if the employee has worked a partial day, and the office closes early or he leaves early due to worsening weather, the employer cannot deduct anything from his salary. If the employee has no accrued vacation or PTO, the employer can deduct the vacation or PTO time retroactively after the employee has accrued additional time. An important exception to this is when an employee leaves early but works from home or remains at home and works a full day. If an exempt employee is busy answering emails and completing other work, then he or she is considered to be working and nothing should be deducted from vacation or PTO.
The situation is different for non-exempt employees because they are paid only for the time they actually work. While some employers may not dock time missed due to weather, employers have the option to deduct the time from accrued vacation or PTO. Also, if the employer permits its non-exempt employees to work from home, the hours worked on a snow day must be paid in the same manner as if the employee had been in the office. These hours also are counted toward time worked for overtime purposes.
Finally, Massachusetts requires that employees who are scheduled to work a minimum of three hours and who report to work must be paid for at least three hours at the current minimum wage rate, even if the company closes early due to inclement weather. Employers that are deemed charitable organizations under federal law need not pay their employees under this circumstance.