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Adverse Weather Policies in the Private Sector

Does a company have to have an adverse weather policy?
No. It is up to each individual employer to come up with its own adverse weather policy. There are no labor laws that require an employer to have such a policy in effect.

Does an employer have to give employees opportunities to make up adverse weather time if the company does have an adverse weather policy?
No. Even if a company has an official adverse weather plan, there are no labor laws stating that an employer must give its employees the opportunity to make up time not worked because of bad weather. It is up to each individual employer to allow its employees to use vacation time or not, to make up the time or not, or not pay employees who do not show up for work when the business is open. Note: There is one exception to an employer not having to pay an employee who does not report to work–see (2) in paragraph below.

Does an employer have to pay employees for time lost during adverse weather?
In most cases, no. An employer does not generally have to pay its employees for time lost when the business is closed due to adverse weather. However, there are two exceptions where the employer does have to pay for such lost time: (1) minimum wage/overtime pay exempt executive, administrative or professsional employees who are directed by the employer not to come to work, but perform some work during the workweek, and (2) salaried non-exempt employees who are paid a guaranteed salary for all hours worked in a workweek and then are paid an additional one-half time for all overtime hours and who perform any work during the workweek. Note: An employer does not have to pay any employee who does not perform any work at all in a workweek for that workweek regardless of the situation or the employee's employment status.

If my employer does have an adverse weather policy, what are the employer's obligations?
If an employer does establish an adverse weather condition policy, then pursuant to N.C.G.S. §95-25.13(2), the employer must: "Make available to its employees, in writing or through a posted notice maintained in a place accessible to its employees, employment practices and policies with regard to promised wages." The employer must comply with its own adverse weather policy until such time as the employer changes its policy in writing, notifies its employees of such changes prior to the effective date, and does not take away retroactively any benefits already earned, pursuant to N.C.G.S. §95-25.13(3).

Does my employer have the right to make me come to work during adverse weather conditions?
Yes. Since an employer does not have to have an adverse weather policy at all, the employer can simply inform its employees that they must report to work whenever the business is open regardless of the weather conditions or road conditions. With very few employment law exceptions (discussed below), an employer can make staying at work or reporting to work during adverse weather a condition of employment.

What if the governor declares a "state of emergency" and asks everyone to stay off the roads?
It does not matter if state officials have declared a state of emergency and are advising people to stay off of the roads. The decision to stay open or to close, for its employees to remain at work or leave early, or for its employees to report to work or not during adverse weather conditions, is entirely up to each individual employer to make on its own.

Employment-at-Will
How an employer treats its employees during adverse weather conditions comes under the concept of "employment-at-will". This means that unless there is a specific law to protect employees or there is an employment contract providing otherwise, then an employer may treat its employees as it sees fit, and the employer can hire or discharge employees at the will of the employer for any reason or no reason at all.

The most common protected categories are those that protect an employee's civil rights based on age, race, sex, religion, national origin, color, disability [including the Americans with Disability Act (ADA)] or pregnancy. For questions or information on these protected categories, contact the federal Equal Employment Opportunity Commission (EEOC) as follows:
Toll-free number to be connected to closest office: 1-800-669-4000
Toll-free number for EEOC/ADA posters: 1-800-669-3362
Toll-free number for ADA questions: 1-800-949-4232
Web site: http://www.eeoc.gov/

Retaliatory Employment Discrimination Act
Another protected category comes under the Retaliatory Employment Discrimination Act (REDA), which is administered by the N.C. Department of Labor Employment Discrimination Bureau (EDB). REDA protects against retaliation by an employer when an employee engages in activities protected under the Occupational Safety and Health Act (OSHA), the Mine Safety and Health Act, the N.C. Wage and Hour Act (WHA), and Workers Compensation Act (and work related injuries), as well as for carrying the sickle cell trait, use of genetic testing information, participating in the N.C. National Guard, and participating in the juvenile court system concerning the employee's child. If you think you have a REDA complaint, call EDB immediately, as there is a time limit to file a REDA complaint. Please call NCDOL at (919) 807-2796 (Raleigh-area) or toll-free (N.C. only) 1-800-NC-LABOR (1-800-625-2267). The call center is open from 8 a.m. to 5 p.m., Monday through Friday.

Unemployment Compensation
Please note that NCDOL does not have any jurisdiction concerning unemployment compensation for any reason. You need to contact your local N.C. Employment Security Commission (ESC) office or contact the central office in Raleigh at (919) 733-3098 for assistance concerning unemployment compensation. Web site: http://www.ncesc.com/

Other Laws
This is only a labor law explanation of how an employer may treat its employees during adverse weather conditions. Consult with a private attorney about what other rights an employee may have during adverse weather conditions. If you do not have an attorney or know of one to contact, you may contact the N.C. Lawyer Referral Service at (919) 677-8574 (Wake County) or toll-free (N.C. only) 1-800-662-7660.
Web site: www.ncbar.org/legal_prof/probono/atj_lrs.asp

If you cannot afford an attorney, you may be eligible for free legal advice through a Legal Aid Services office in your area. Contact their central office in Raleigh at (919) 856-2564 for information on local offices throughout the state. Web site: http://www.legalaidnc.org/

Please call our call center if you still have questions.

N.C. Department of Labor
Wage and Hour Bureau
1101 Mail Service Center
Raleigh, NC 27699-1101
(919) 807-2796 or (toll-free N.C. only) 1-800-NC-LABOR (625-2267)
Web site: http://www.nclabor.com/


 

 

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