Mark Knuckles Associates, Inc.

01/22/2026

Inclement Weather Closings and the FLSA

Employer closings due to inclement weather raise questions about the requirements of the Fair Labor Standards Act (FLSA) and state and local wage and hour laws. While the state and locality laws generally follow the FLSA, there are some differences. Check your state wage and hour poster.

Requirements Under the FLSA:

Hourly non-exempt employees: The FLSA does not require pay for non-exempt hourly employees when an employer closes. Pay is required only for hours worked. If the employer closes and the employee performs work remotely, the employee must be paid for the work performed.

Salaried non-exempt employees: A non-exempt employee paid a salary and half-time for overtime hours under the Fluctuating Workweek Method (Part 778.114) cannot be docked for inclement weather or business closings. The employer can require the use of earned leave, provided its use does not result in a payback in the employee’s salary in future weeks or the final week of employment if the employee fails to earn it back. A non-exempt “salaried” employee who is paid time and one-half for overtime hours may be docked for a business closing, depending on the employer’s policy and the employment agreement.

Salaried Exempt Employees: Salaried employees who clearly qualify as exempt under Part 541, as executive, administrative, or professional employees, must be paid their full salary without reduction for an inclement-weather business closing. The only exceptions are doctors, lawyers, and teachers, who are not subject to the minimum salary test, and computer professionals paid under the hourly exception rule (Part 541.400). The employer may require the use of leave, provided the use of leave does not result in a payback or pay reduction in a future week or final week. However, if the employee performs any work remotely during the business closing, i.e., engages in work-related email or prepares/reads reports, they must be paid their full salary.

A salaried exempt employee who performs no work during the employer’s FLSA “seven-day workweek” does not have to be paid their salary under the FLSA. Note, the employer’s established FLSA “seven-day workweek” may not be the same as the calendar week.

If the business is open, or where there is a partial shutdown where FLSA salaried exempt employees are required to report, and an exempt employee chooses not to report for personal reasons, ie. is unable to get out of the driveway or up the street, an employee with no leave can be docked for one or more “full days,” but not partial days. If the employee performs any work remotely, they must be paid their full salary.

Public agency employees: Public agencies may have rules and policies that provide benefits beyond the FLSA when employees are placed on “administrative leave” for closings with no loss of pay. Such policies may also require the use of leave for closings. However, such policies must provide at least the protections of the FLSA. If the policy requires the use of leave and the reduction of pay if there is insufficient leave or leave is denied, the public accountability rule, Part 541.710, only applies to “absences for personal reasons or because of illness or injury” and does not apply to inclement weather or other business closings.

States with Minimum Reporting Pay Requirement

The FLSA does not require minimum reporting pay when an employee reports to work and is then sent home because the employer closes due to inclement weather or there is no work. However, some states and local governments do have a "reporting to work" pay requirement. Generally, if the employee makes the effort to report to work and is then told the business is closed, it is a good business policy and common practice to pay the employee for a minimum of two to four hours for their effort.

California: Half the usual/scheduled day's work (Min: 2 hours; Max: 4 hours).

Connecticut: Varies by industry (e.g., 4 hours for laundry, 2 hours for hotels/restaurants).

District of Columbia: At least 4 hours, or the number of hours in the regularly scheduled shift.

Massachusetts: At least 3 hours for shifts scheduled for 3 hours or more.

New Hampshire: At least 2 hours.

New Jersey: At least 1 hour.

New York: At least 3 hours for one shift, or the scheduled shift (up to 4 hours).

Rhode Island: At least 3 hours.
________________________________________
Common Exceptions

• Voluntary Departure: If an employee chooses to leave early for personal reasons (e.g., illness), reporting pay is generally not required.3

• Advance Notice: In many jurisdictions, if an employer notifies the employee in advance (usually 24 hours) that they are not needed, the reporting pay requirement does not apply.

01/22/2026

Inclement Weather Closings and the FLSA

Employer closings due to inclement weather raise questions about the requirements of the Fair Labor Standards Act (FLSA) and state and local wage and hour laws. While the state and locality laws generally follow the FLSA, there are some differences. Check your state wage and hour poster.

Requirements Under the FLSA:

Hourly non-exempt employees: The FLSA does not require pay for non-exempt hourly employees when an employer closes. Pay is required only for hours worked. If the employer closes and the employee performs work remotely, the employee must be paid for the work performed.

Salaried non-exempt employees: A non-exempt employee paid a salary and half-time for overtime hours under the Fluctuating Workweek Method (Part 778.114) cannot be docked for inclement weather or business closings. The employer can require the use of earned leave, provided its use does not result in a payback in the employee’s salary in future weeks or the final week of employment if the employee fails to earn it back. A non-exempt “salaried” employee who is paid time and one-half for overtime hours may be docked for a business closing, depending on the employer’s policy and the employment agreement.

Salaried Exempt Employees: Salaried employees who clearly qualify as exempt under Part 541, as executive, administrative, or professional employees, must be paid their full salary without reduction for an inclement-weather business closing. The only exceptions are doctors, lawyers, and teachers, who are not subject to the minimum salary test, and computer professionals paid under the hourly exception rule (Part 541.400). The employer may require the use of leave, provided the use of leave does not result in a payback or pay reduction in a future week or final week. However, if the employee performs any work remotely during the business closing, i.e., engages in work-related email or prepares/reads reports, they must be paid their full salary.

A salaried exempt employee who performs no work during the employer’s FLSA “seven-day workweek” does not have to be paid their salary under the FLSA. Note, the employer’s established FLSA “seven-day workweek” may not be the same as the calendar week.

If the business is open, or where there is a partial shutdown where FLSA salaried exempt employees are required to report, and an exempt employee chooses not to report for personal reasons, ie. is unable to get out of the driveway or up the street, an employee with no leave can be docked for one or more “full days,” but not partial days. If the employee performs any work remotely, they must be paid their full salary.

Public agency employees: Public agencies may have rules and policies that provide benefits beyond the FLSA when employees are placed on “administrative leave” for closings with no loss of pay. Such policies may also require the use of leave for closings. However, such policies must provide at least the protections of the FLSA. If the policy requires the use of leave and the reduction of pay if there is insufficient leave or leave is denied, the public accountability rule, Part 541.710, only applies to “absences for personal reasons or because of illness or injury” and does not apply to inclement weather or other business closings.

States with Minimum Reporting Pay Requirement

The FLSA does not require minimum reporting pay when an employee reports to work and is then sent home because the employer closes due to inclement weather or there is no work. However, some states and local governments do have a "reporting to work" pay requirement. Generally, if the employee makes the effort to report to work and is then told the business is closed, it is a good business policy and common practice to pay the employee for a minimum of two to four hours for their effort.

California: Half the usual/scheduled day's work (Min: 2 hours; Max: 4 hours).

Connecticut: Varies by industry (e.g., 4 hours for laundry, 2 hours for hotels/restaurants).

District of Columbia: At least 4 hours, or the number of hours in the regularly scheduled shift.

Massachusetts: At least 3 hours for shifts scheduled for 3 hours or more.

New Hampshire: At least 2 hours.

New Jersey: At least 1 hour.

New York: At least 3 hours for one shift, or the scheduled shift (up to 4 hours).

Rhode Island: At least 3 hours.

________________________________________
Common Exceptions

• Voluntary Departure: If an employee chooses to leave early for personal reasons (e.g., illness), reporting pay is generally not required.3

• Advance Notice: In many jurisdictions, if an employer notifies the employee in advance (usually 24 hours) that they are not needed, the reporting pay requirement does not apply.

Mark Knuckles Associates are former Wage and Hour Division investigators and professional HR consultants helping good employers comply with the FLSA, FMLA, ADA, EEO and Employee Classification laws.

01/30/2025

Sweeping Presidential Order Defining “Sex” Published Today

President Trump signed and published today EO 14168, which defines or returns the definition of “sex” to only males and females as biologically created at birth. It removes the term “gender identity” from the term “sex,” as used in recent government regulations, including labor, Health and Human Resources, and Education.

‘‘Sex’’ shall refer to an individual’s immutable biological classification as either male or female. ‘‘Sex’’ is not a synonym for and does not include the concept of ‘‘gender identity.’’ (EO 14168)

The results will be an earthquake in human resource management and education in the U.S.

The link to the EO is:https://www.govinfo.gov/content/pkg/FR-2025-01-30/pdf/2025-02090.pdf

We can expect a flood of litigation to try to stop or limit this executive order. The final ruling will rest with the USSC.

01/15/2025

Revisions to Davis-Bacon Certified Payroll Form Approved

For Construction Contractors Working on Federally Funded/Financed Construction Projects (DBRA Contracts)

On Aug. 30, 2024, the Department of Labor (USDOL), requested comments concerning proposed revisions of the information collection request (ICR) titled “Davis-Bacon Certified Payroll.”

On Jan. 6, 2025, the USDOL received final approval from the Office of Management and Budget. The revisions clarify the data to be entered in certain fields, include more information about fringe benefit contributions and participation in apprenticeship programs, and simplify the form’s instructions. The form is currently available on the Wage and Hour Division’s website as a non-fillable PDF, and a fillable PDF version will be available soon.https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh347.pdf

Training videos on the use of the revised WH-347 will also soon be available at the Prevailing Wage Video Library. https://www.dol.gov/agencies/whd/government-contracts/construction

Questions about how to fill out the revised fields can be sent to
[email protected]. Contractors and sub-contractors on DBRA contracts are encouraged to immediately begin using the revised form.

The Davis-Bacon and Related Acts (DBRA) are federal wage and hour, benefits, and safety laws pertaining to federally funded or financed construction contracts. Examples include highway and bridge construction, ports, national parks, most schools and hospitals, and many others.

The .gov means it’s official. Federal government websites often end in .gov or .mil. Before sharing sensitive information, make sure you’re on a federal government site.

12/05/2024

USDOL Publishes Revision to 29 CFR Part 525 to
Phaseout Section 14c Commensurate Wages

Biden Administration Ignores
Statutory Mandate to Issue Certificates

The USDOL Wage-Hour Division published an NPRM, notice of proposed rulemaking, on December 3, 2024, to revise 29 CFR Part 525 and phase out certificates allowing commensurate wages. Giving up on Congress to amend the Fair Labor Standard Act, FLSA, Section 14c, the Biden Administration chose to revise the existing regulation that authorizes certificates.

Despite the statutory mandate at 14( c), "The Secretary shall, . . . ." issue certificates, the current USDOL is revising the regulation mandated by 14( c) to stop issuing and renewing certificates. The Department relies on the phrase "to prevent curtailment of opportunities for employment" as its authorization to stop. The Department claims that now all persons with disabilities can obtain employment at full wages and benefits and commensurate wages are no longer needed.

The NPRM "invites" written comments. Comments must be submitted by Friday, January 17, 2025, three days before the end of the Biden Administration. Inauguration day is Monday, January 20, 2025.

(Could the timing be designed to publish the "Final Rule" as now drafted on the last working day of the current administration and make that the "effective date?" Do we really believe that the current administration will let the Trump Administration "consider" the comments from the public, incorporate those comments and suggestions, make edits, and publish the final Rule?)

Issuance of New Certificates Ends on the "Effective Date?

The proposed rule revision will eliminate the issuance of new certificates immediately on the "effective date." Usually, a proposed rule will propose an "effective date" of 60, 90, or 180 days from the published date of the Final Rule. There is no proposed future date; thus, we must assume that the "effective date" will be the date the Final Rule is published. Could it be January 18, 2025, the day after the end of the comment period?

Current certificate holders can renew their certificates, provided they comply with the requirements, for three years from the "effective date." No renewal will extend beyond that three-year date, and commensurate wages will not be allowed beyond three years from the effective date.

Submitting Comments: You may submit comments, identified by Regulatory Information Number (RIN) 1235-AA14, by either of the following methods:

• Electronic Comments: Submit comments through the Federal eRulemaking Portal at https://www.regulations.gov. Follow the instructions for submitting comments.

• Mail: Address written submissions to: Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210.

Instructions: The Department requests that no business proprietary information, copyrighted information, or personally identifiable information be submitted in response to this NPRM.

Commenters submitting file attachments on https://www.regulations.gov are advised that uploading text-recognized documents— i.e., documents in a native file format or documents that have undergone optical character recognition (OCR)—enable staff at the Department to more easily search and retrieve specific content included in your comment for consideration. All comments become part of the public record.

The USDOL news release: https://www.dol.gov/newsroom/releases/whd/whd20241203

A copy of the 2-page proposed Rule without comments/justification: https://www.markknuckles.com/images/PDF_1_04122024161227.pdf

A copy of the 46-page proposed Rule with all comments/justification by the USDOL: https://www.markknuckles.com/images/PDF_1_04122024160320.pdf

Results in the Loss of Thousands of Jobs for
Significantly/Severely Disabled Individuals

To state that all workers with disabilities can now obtain employment at full wages is irresponsible misinformation by the USDOL. Those of us serving throughout the industry and the parents of consumers know that eliminating commensurate wages, the fairest wage in all sectors, will eliminate thousands of jobs. These are the jobs where even the most significantly disabled contribute to society and enjoy meaningful work without competition with non-disabled workers. In fact, in our (MKAI) work with CRPs across the country, we have already seen hundreds, if not more, of consumer workers with significant disabilities removed from meaningful paying work in those states that have preemptively stopped commensurate wages.

While the CRP industry (aka sheltered workshops) has avoided taking legal action against the USDOL about the abuses and inadequate administration of FLSA Section 14c, now is the time for the CRP industry and the parents of consumer workers to act and stop this proposed rule.

MKAI will keep you posted as to any changes.

12/05/2024

USDOL Appeals Ruling that Blocked the New Minimum Salaries

The USDOL has appealed the Federal Court Decision in Texas that invalidated the new minimum salaries for salaried employees exempt under 29 CFR Part 541. The Part 541 exemptions are known as the "white collar" exemptions and include those who meet the salary and duty test to be executive, administrative, professional, computer professional, and outside sales employees. In the Texas v. Department of Labor case, the Federal Court for the Eastern District of Texas ruled that the USDOL exceeded its authority by setting such a high minimum salary. The court invalidated the new minimum salary nationwide.

The ruling is significant in that it is one of the first cases following the landmark USSC decision in June in Loper Bright Enterprises v. Raimondo. In Raimondo, the USSC held that the federal courts must exercise independent judgment in deciding whether an agency acted within its statutory authority and the courts were not bound by the agency’s interpretation and guidance.

It is unknown whether the incoming administration will continue to pursue the appeal. The current administration could seek to expedite the appeal. The appellate court is expected to uphold the lower court decision. However, even if the USDOL is successful, it is unlikely that the new salaries will be put back in place before January 1.

MKAI will keep our clients informed about the progress of the appeal and any changes.

11/18/2024

Federal Court Invalidates Exempt Salary Increase Nationwide

The US District Court for the Eastern District of Texas has struck down the new Fair Labor Standards Act, FLSA, 29 CFR Part 541, minimum salary for exempt employees. The ruling is nationwide. The new minimum salary was scheduled for January 1, 2025. The decision also invalidated the July 1, 2024, minimum salary.

The Court ruled that the salary was so high that it upset the balance of the two required tests for the exemption, duties, and salary, that Congress and the regulation required.

The Biden Administration is expected to immediately appeal the decision to the Fifth Circuit Court of Appeals, hoping to overturn the ruling and save the revised minimum salary before the new Congress and Trump Administration take charge.

MKAI will keep you informed of any changes. However, for now, the new minimum salary has been blocked by the Court nationwide.

07/05/2024

Second Court Does Not Issue Nationwide Block of New Salary Rule

The US District Court for the Northern District of Texas did not issue a preliminary nationwide block of the new revised 29 CFR Part 541 minimum salaries for exempt executive, administrative, and professional employees (EAPs). The case is still before the court to consider the merits and make a final decision. However, the ruling means employers nationwide must comply with the new minimum salaries for exempt EAPs. Only Texas, with its state employees is not required at this time to comply with the new minimum salary. All other employers in the state of Texas and nationwide must comply.

There is other litigation expected in an attempt to stop the increase.

As of July 1, most salaried workers paid a salary less than $844 per week must be paid an overtime premium under the final rule. And on Jan. 1, 2025, most salaried workers paid a salary less than $1,128 per week must be paid overtime premium pay. They must also meet the job duties requirements in Part 541 to qualify for the overtime exemption.

Briefly, to qualify for the “EAP” exemption:

1. An employee is paid a guaranteed salary that is not subject to reduction,

2. The salary is not less than a new minimum salary, and

3. The employee primarily performs executive, administrative, or professional duties as fully explained and defined in 29 CFR Part 541. Outside sales employees, doctors, lawyers, and teachers have a duty test but not a minimum salary requirement.

The department increased the minimum salary required for the EAP exemption from overtime pay every 5 to 9 years between 1938 and 1975.

MKAI consultants are available to help you determine the exemption status of your employees. We are regularly assisting employers, some while under investigation by the Wage Hour Division, make exemption status determinations under 29 CFR Part 541. We know what jobs the WHD investigators target and how they review job duties and apply the primary duty requirements.

06/25/2024

Department of Justice Finds Utah in Violation of the ADA Olmstead Decision by Allowing Sheltered Work Programs

Department of Justice, Civil Rights Division
Tuesday, June 18, 2024
For Immediate Release, Office of Public Affairs

The Justice Department announced today its findings that Utah is violating the Americans with Disabilities Act (ADA) by unnecessarily segregating youth and adults with intellectual and developmental disabilities (I/DD) during the day, instead of helping them find work and spend their days in their communities.

The department found that the State relies on segregated settings, such as sheltered workshops and day facilities, where people with I/DD have limited interaction with people without disabilities and have little choice in how to spend their time. As a result, thousands of Utahns with I/DD spend their days separated from their communities. Other individuals with I/DD in the State, including youth with I/DD who are transitioning out of children’s services, are at serious risk of unnecessary segregation in these settings.

“Full inclusion in society is a central promise of the ADA,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “People with intellectual and developmental disabilities are entitled to full inclusion, and to the dignity and purpose that comes with deciding where to work and how to spend their days.”

Utah’s sheltered workshops are often located in large, industrial warehouses. People with I/DD who work in sheltered workshops may spend all day at the warehouse, performing rote tasks — like shredding paper — often for less than minimum wage. In day facilities, people with I/DD may similarly spend all day at the facility with nothing much to do other than craft or watch TV.

The ADA and the U.S. Supreme Court’s decision in Olmstead v. L.C. require state and local governments to make their services for people with disabilities available in the most integrated setting appropriate to each person’s needs. In October 2023, the department issued guidance explaining how this federal requirement applies to publicly-funded employment and day services.

The Civil Rights Division’s Disability Rights Section investigated the case, with assistance from the U.S. Attorney’s Office for the District of Utah.

For more information on the ADA, please call the department’s toll-free ADA Information Line at 1-800-514-0301 (TDD 800-514-0383) or visit www.ada.gov/topics/community-integration/.

For more information on the Civil Rights Division, please visit www.justice.gov/crt.
DOJ Updated June 18, 2024

04/29/2024

USDOL Wage and Hour Division Publishes Field Assistance Bulletin (FAB) No. 2024-1

Artificial Intelligence and Automated Systems in the Workplace under the Fair Labor Standards Act and Other Federal Labor Standards

Today, the Wage and Hour Division published Field Assistance Bulletin (FAB) No. 2024-1, Artificial Intelligence and Automated Systems in the Workplace under the Fair Labor Standards Act and Other Federal Labor Standards, which provides guidance regarding the application of the Fair Labor Standards Act (FLSA) and other federal labor standards as the use of artificial intelligence (AI) and other automated technologies increase in the workplace.

Employers sometimes use AI to track work hours and performance and even process medical leave requests, among other functions. The federal labor laws WHD enforces are flexible enough to cover these changing workplace practices, and protections apply regardless of technological innovation. In all cases, employers must ensure the responsible use of AI to maintain compliance with federal labor laws.

The 32-page FAB provides instructions and interpretive guidance to WHD investigators and employers. It covers subjects such as hours worked, break time, waiting time, tracking leave, etc. The USDOL recognizes the value of AI when used properly. However, as with any human resource management tool, AI could result in systemic violations if compliance is not monitored.

https://www.dol.gov/sites/dolgov/files/WHD/fab/fab2024_1.pdf

MKAI consultants have extensive experience conducting compliance reviews of the laws enforced by the WHD and EEOC, including assisting employers who are under investigation by those agencies. Call our office, 828-328-9241, or email us at [email protected] for more information.

04/01/2024

Long-Term-Part-Time Employees Now Included in Your 401k

In our December 2023 issue, we broke the news that beginning January 1, 2024, part-time employees who had worked at least 500 hours in each of the last three years, 2023, 2022, and 2021, must be informed they could make an elective contribution to 401k plans.

The SECURE Act I created a new group of eligible employees, called LTPTs, long-term part-time employees. The result is a new lower eligibility threshold in addition to the decades-old "1000-hour" eligibility rule.

Employers cannot use an across-the-board rule and ignore workers who have not worked 1000 hours. Employers with 401k plans must get out their calculator and count the hours of part-time employees in the last three years. Employers must revise their 401k plans to include LTPT employees to meet the plan's time-in-service requirement. The SECURE Act prohibits setting different time-in-service requirements for LTPT employees.

It also prohibits setting a working hours requirement of more than 500 per year. However, certain worker classifications can be excluded according to your plan in compliance with 401k requirements, provided the exclusion is not discriminatory. For example, excluding a group of workers with disabilities because they are in a Medicaid waiver program would be prima facia discrimination under the Americans with Disabilities Act, ADA. Also, excluding workers in a training program would be discriminatory if all the workers had disabilities.

This year, the Act does not require employers to match the LTPT worker's contribution to the plan.

Beginning January 1, 2025, the qualification years will be reduced to two years, 403B plans will be included, and employers must make matching contributions. The new rules allow specific classification exclusions but not to delay qualification and are "not based on age or service."

See our December 2023 issue for more information. We will provide more details next month. If you have not attempted to comply, penalties are substantial, and the law gives employees the right to sue their employer for failing to comply.