FLSA2005-46 — Salary docking for weather-related absences and section 13(a)(1)

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

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October 28, 2005
FLSA2005-46

Dear
Name*,

This is in response to your request for an opinion concerning the “salary basis” requirements for
exemption under section 13(a)(1) of the Fair Labor Standards Act (FLSA) and its implementing
regulations, 29 C.F.R. Part 541.

You state that healthcare institutions have specialized absence policies due to their special needs
even in weather emergencies. Those absence policies provide that, if employees do not report to
work during adverse weather conditions, when they are not sick and have not been advised not to
report to work, the employees are docked a full day of pay and are not permitted to use their
vacation or personal (leave) bank for the absence. You state that exempt employees who arrive late
under such circumstances are not docked in any manner regardless of how many hours they miss of
their scheduled shift. You ask whether the “salary basis” regulations, which permit deductions for one
or more full days for absences for “personal reasons,” would include within the “personal reasons”
exception absences for weather-related reasons. As explained further below, it is the Department’s
view 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.

Section 13(a)(1) of the FLSA provides a complete minimum wage and overtime pay exemption for
any employee employed in a bona fide executive, administrative, or professional capacity, as those
terms are defined in 29 C.F.R. Part 541. An employee may qualify for exemption if the employee
meets all of the pertinent tests relating to duties, and receives compensation on a “salary basis” at
not less than minimum amounts, as described in the appropriate section of the regulations. Please
note that revisions to 29 C.F.R. Part 541 were published as a final rule in the Federal Register on
April 23, 2004 (69 Fed. Reg. 22,122) and became effective on August 23, 2004 (copy enclosed).
1

Under section 541.600(a), “an exempt executive, administrative or professional employee under
section 13(a)(1) of the Act ... must be compensated on a salary basis at a rate of not less than $455
per week ....” Section 541.602 defines the requirements for payment on a “salary basis,” and states
that “[s]ubject to the exceptions provided in paragraph (b) of [that] section, an exempt employee
must receive the full salary for any week in which the employee performs any work without regard to
the number of days or hours worked. Exempt employees need not be paid for any workweek in
which they perform no work. An employee is not paid on a salary basis if deductions from the
employee’s predetermined compensation are made for absences occasioned by the employer or by
the operating requirements of the business. If an employee is ready, willing and able to work,
deductions may not be made for time when work is not available.” 29 C.F.R. § 541.602(a)
(emphasis added).

Section 541.602(b) details the limited exceptions to the general “salary basis” rule. Deductions may
be made “when an exempt employee is absent from work for one or more full days for personal
reasons, other than sickness or disability. Thus, if an employee is absent for two full days to handle
personal affairs, the employee’s salaried status will not be affected if deductions are made from the
salary for two full-day absences. However, if an exempt employee is absent for one and a half days

1
As you know, the prior rule addressed the issues in your inquiry at 29 CFR § 541.118. Our response cites to
the final regulations effective August 23, 2004; however, because there were no substantive changes in the
regulatory sections pertinent to your inquiry, our substantive analysis applies equally under both the prior and
the revised regulations.

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

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for personal reasons, the employer can deduct only for the one full-day absence.” 29 C.F.R.
§ 541.602(b)(1) (emphasis added). Deductions may also be made with regard to absences “for one
or more full days occasioned by sickness or disability (including work-related accidents) if the
deduction is made in accordance with a bona fide plan, policy or practice of providing compensation
for loss of salary occasioned by such sickness or disability.” See 29 C.F.R. § 541.602(b)(2).

The Department of Labor considers an absence due to adverse weather conditions, such as when
transportation difficulties experienced during a snow emergency cause an employee to choose not to
report for work for the day even though the employer is open for business, an absence for personal
reasons. Such an absence does not constitute an absence due to sickness or disability. Thus, under
the policy you described above, an employer that remains open for business during a weather
emergency may lawfully deduct one full-day’s absence from the salary of an exempt employee who
does not report for work for the day due to the adverse weather conditions. Such a deduction will not
violate the salary basis rule or otherwise affect the employee’s exempt status. Please note, however,
that deductions from salary for less than a full-day’s absence are not permitted for such reasons
under the regulations. If an exempt employee is absent for one and a half days due to adverse
weather conditions, the employer may deduct only for the one full-day absence, and the employee
must receive a full-day’s pay for the partial day worked, in order for the employer to meet the “salary
basis” rule. See 29 C.F.R. § 541.602(b)(1).

Furthermore, an employer may not make deductions “for absences occasioned by the employer or
by the operating requirements of the business.” If the employer closes operations due to a weather-
related emergency or other disaster for less than a full workweek, then the employer must pay an
exempt employee “the full salary for any week in which the employee performs any work without
regard to the number of days or hours worked,” because “deductions may not be made for time
when work is not available.” See 29 C.F.R. § 541.602(a).

You referred to a court decision from the Central District of Illinois, Kennedy v. Commonwealth
Edison Co., 242 F. Supp. 2d 542 (C.D. Ill. 2003), which initially held employees of that case were not
paid on a salary basis under the employer’s “snow day” policy, finding the policy was not analogous
to a permissible deduction for “personal reasons” because an absence due to extreme weather
conditions is essentially out of the employee’s control. On reconsideration, the district court reversed
and held that the employer’s snow day policy did not jeopardize the employees’ exempt status
because the deductions were made from leave accounts rather than from the employees’ pay
(Kennedy v. Commonwealth Edison Co., 252 F. Supp. 2d 737 (C.D. Ill. 2003). Despite the Kennedy
Court’s stated rationale in its initial decision and order that were later vacated, it continues to be the
interpretation of the Wage and Hour Division that, when an employer remains open for business
during a weather emergency, and an employee chooses not to report for work for the day due to the
adverse weather conditions and/or attendant transportation difficulties, the employee’s absence in
that situation is considered to be an absence for personal reasons under the applicable regulations.
Any full-day deduction from the salary of an exempt employee for such reason will not violate the
salary basis rule or otherwise affect the employee’s exempt status.

This opinion is based exclusively on the facts and circumstances described in your request and is
given based on your representation, express or implied, that you have provided a full and fair
description of all the facts and circumstances that would be pertinent to our consideration of the
question presented. Existence of any other factual or historical background not contained in your
letter might require a conclusion different from the one expressed herein. You have represented that
this opinion is not sought by a party to pending private litigation concerning the issue addressed
herein. You have also represented that this opinion is not sought in connection with an investigation
or litigation between a client or firm and the Wage and Hour Division or the Department of Labor.
This opinion is issued as an official ruling of the Wage and Hour Division for purposes of the
Portal-to-Portal Act, 29 U.S.C. § 259. See 29 C.F.R. §§ 790.17(d), 790.19; Hultgren v. County of
Lancaster, 913 F.2d 498, 507 (8th Cir. 1990).

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

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We trust that this letter is responsive to your inquiry.

Sincerely,

Alfred B. Robinson, Jr.
Deputy Administrator

Enclosure

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).