KBS Reference Desk: Pay During Weather Closure

Q:        Given last week’s weather forecast, our District decided to close on Friday to avoid having students, employees, and buses on icy roads and bridges. We did not require teachers to work remotely, and no auxiliary staff were required to come in. Is there anything I need to do to ensure that all employees are paid for this day? 

  A:        Yes. Since your employees did not actually perform work, any compensation provided will need to be approved/ratified by the Board of Trustees via resolution at the next board meeting. 

The Texas Constitution, Article III Section 52(a), prohibits a governmental entity, including a public school district, from providing a “grant of public money” or anything of value to an “individual, association or corporation” without just consideration. This prohibition is commonly referred to as an impermissible “gift of public funds.” To survive constitutional scrutiny, governmental entities must be able to identify a “clear public benefit” from all expenditures. The Texas Supreme Court has recognized the following criteria as necessary components to accomplishing this task:

  1. The expenditure’s predominant purpose is to accomplish a public purpose, not benefit private parties;
  2. Sufficient control over the expenditure is retained to ensure that the public purpose is accomplished; and
  3. The governmental entity receives a return benefit.

Board policy DEA (LEGAL) addresses the gift of public funds analysis as applied to compensation. Most school districts will have a corresponding local policy providing direction on how best to meet the above three-prong test when granting funds for days not worked. In short, the board must act, by resolution, to identify the public purpose served and authorize the expenditure. Common reasons cited to justify payment to employees during days of bad-weather closure include: 1) improving and maintaining employee morale; 2) ensuring employee safety (in not requiring travel to work in dangerous conditions); 3) ensuring employees are not financially penalized for emergency decisions; and 4) reducing employee turnover. The majority of local policies make no distinction between compensation provided to contract versus at-will employees, necessitating that your resolution encompass both.

Lastly, some district policies provide for “premium pay” (typically 1.5 times the regular rate of pay) for employees required to report to work during closure, such as maintenance and facilities workers. If your policy speaks to this, there is no legal requirement for specific board action to approve those payments, but you may elect to include the information for purposes of notice and transparency with the community and board. However, if your DEA (LOCAL) is silent on this matter and your board wishes to provide additional compensation to employees required to work during closure, a provision for premium pay should be included in your Board resolution with specific parameters for the amount of compensation and employees to whom the payments would apply.

For help in drafting your board resolution to ensure compliance with board policy DEA (LOCAL) and the Texas Constitution, it is recommended that you work with your local school attorney.

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