In the wake of Hurricane Irma, many employers have questioned their obligation to pay employees while their businesses have been closed. The answer will be different for employees who are exempt and non-exempt under the federal Fair Labor Standards Act (FLSA).

Under the FLSA, employees who are exempt from overtime requirements must receive their full salary for any week in which the employees perform work, regardless of the number of days or number of hours of work performed in that week. Thus, if an exempt employee only works one day during the week, he or she is still entitled to his or her full salary. When an office is closed for less than a week due to inclement weather, the exempt employee is entitled to his or her full salary, even if the employee does not have any available paid time off.

However, nonexempt employees must be paid according to the number of hours worked during any particular workweek and will receive overtime for any hours worked above 40 during a week. If an office is closed because of inclement weather, the FLSA does not require employers to compensate nonexempt employees who are not performing work during the closure. Any paid time off used by nonexempt employees is not working time and will not count toward hours worked for purposes of calculating overtime. Nonexempt employees must perform more than 40 hours in a workweek to be paid overtime.

In addition to federal law requirements, employers should review any inclement weather or other policies to see if they afford employees greater rights than provided under law. Employers should also check their policies to ensure they are consistent with or more generous than federal and/or state law. If you have employees outside of Florida who are affected by business closings due to weather, check your state law for different or additional obligations.