Employment and Labor Law

Almost without exception, businesses are faced with the question of whether an exempt employee’s salary can be docked because inclement weather has affected its operations and the employee’s ability to come to work. The question comes to mind particularly for business along the nation’s eastern seaboard during hurricane season when regions are impacted by torrential rain, heavy winds or flooding that make traveling difficult, dangerous or even impossible and which impact orderly business operations.

Answering the question of whether an exempt employee must be compensated for missed work often starts with reviewing the Fair Labor Standards Act’s (“FLSA”). Enacted by Congress in 1938 and occasionally amended since, the FLSA requires employers to: 1) pay non-exempt employees at least the lawful minimum hourly rate for each hour worked; 2) pay non-exempt employees one and a half times the employee’s regular rate of pay for each hour worked exceeding forty hours in a work week; and 3) to keep accurate records of the time worked and the money paid. Businesses which are not engaged in commerce or production of good for commerce are exempt from requirements of the FLSA. Today, it is fair to say that most business come within the purview of the FLSA. Employees such as professionals, executives and administrators who meet certain duties test and who are paid on a salary basis are also exempt from FLSA protection.[1]

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