Can my employer send me home during my regular shift for lack of work?

Most people who work do so because they need the money.  When you are counting on the money you expect to earn to pay for your housing, food, and other expenses, it can be a huge problem when something happens to prevent you from getting paid what you thought you would.  One issue we regularly get asked at Gold Star Law is about employers canceling shifts or sending employees home early without pay.  If you are scheduled to work, and do not do anything wrong or choose to leave, can your employer prevent you from working and being paid for your hours?

The answer to this question depends on whether you are considered to be “exempt” or “non-exempt” under the Fair Labor Standards Act.  The Fair Labor Standards Act, or FLSA, requires that employees be paid at least minimum wage for all hours worked and one and one-half times their regular rate of pay for hours worked in excess of forty per week, with many exceptions.  Some exceptions to the FLSA, called “exemptions,” say that employees who meet certain criteria do not need to meet one or both of the minimum wage and overtime requirements.  Many exemptions require that an employee be paid on a salary basis in order for the exemption to apply.  These employees, who are paid on a salary basis and are not entitled to minimum wage or an overtime premium, are called “salaried exempt” employees.

If an employee is a salaried exempt employee, that employee is entitled to the full salary amount if he or she works any part of a day or shift, unless the employee misses work for certain reasons. An employer can deduct a full days’ worth of pay from a salaried exempt employee’s pay for a week where the employee misses a full day of work due to personal reasons.  However, an employer cannot deduct from a salaried exempt employee’s pay when the employee does not have the opportunity to work.  This means the employer cannot deduct from a salaried exempt employee’s pay if the employee misses work because the business is closed for any reason, because the employee is sent home due to work being slow, or if the employee is unable to work despite being able to do so (for example, if there is a power outage or natural disaster.)  If you are a salaried exempt employee who was sent home because work was slow, you should still be paid for the full day.

For employees who are paid on an hourly basis, the requirement is that the employee be paid for actual time worked.  Hourly employees who are sent home early due to lack of work are not entitled to be paid for the time they did not actually work, even if it is time they would have normally worked and been paid.  However, there is a requirement that employers do not discriminate in employment decisions on an illegal basis.  If business is slow and an employer wants to send some employees home early, there must be a non-discriminatory basis for selecting the employees who are sent home (or told not to come in to work.)  An employer could ask for volunteers, could base the decision on seniority, or could draw names out of a hat.  An employer should not base the decision to send employees home on race, age, sex, religion, national origin, color, disability, military membership, height, weight, familial status, or whether the employee has engaged in any type of protected activity.

If you believe that you have been paid illegally or discriminated against, call Gold Star Law for help.