Each season brings us some form of inclement weather; tornadoes, hurricanes, firestorms and snowstorms. If you haven’t already done so, now is the perfect time to review your emergency organizational policies. In this article we are going to review a few of your legal obligations regarding some unique wage and hour issues that disasters and inclement weather can raise.
Q. Do you have to pay your employees during an emergency organizational shut down?
Before we answer this one we would like to point out that the answers and our comments are based upon the Fair Labor Standards Act (FLSA) and US Department of Labor (DOL) requirements. You may also need to be aware of additional state and/ or local requirements. Remember, when there is a conflict between state and federal law, you always go by whichever is the MOST beneficial to the employee. These are the minimum standards; your organization may choose to more generous.
A. Yes, no, and sometimes.
The answer to this question depends on whether the employee is exempt or nonexempt according to the rules under the FLSA.
Yes: Exempt employees (as defined by a process under the rules of the FLSA) must be paid if they work anytime during a work week and are ready, willing and able to work the remaining days whether they actually work or not. If a hurricane, snowstorm or an earthquake happen and your operations are closed for a few days, there is no way of knowing who would have been able to make it to work had your organization been open. You must assume that all your exempt staff were ready, willing and able to come to work and pay them accordingly. However, if the workplace is closed for an entire week and the employee performs no work (no cell phone calls, texts or emails to staff, etc.) then the organization does not need to pay. You do have the option to require exempt employees take vacation or some sort of leave time, but you can’t insist on leave without pay.
No: The rules are different for nonexempt employees. Nonexempt employees generally only must be paid for the hours they actually work. An employer ordinarily does not need to pay nonexempt employees for hours not worked. Think about organizational morale when you pay the exempt staff and refuse to pay the nonexempt staff. This could create feelings of being under-valued and unappreciated, especially when many nonprofit staff are classified as nonexempt. You may want to consider allowing them to use a vacation or leave day for compensation. Some organizations view weather or disaster days as paid absences for non-exempts. This is an important investment in employee relations and goodwill. Most employers want their employees to be safe and to maintain their ability to pay their bills.
Sometimes: Some states, for example, California, Massachusetts, Oregon (minors under 18) and New York, have “show up pay” or “reporting time pay” laws that would require an employer to pay a nonexempt employee a specified amount for showing up for work even if the employee is sent home because of bad weather or some other factor that is out of the employee’s control. On-call time during a storm is compensable to the same extent that on-call time is compensable under any other scenario. The central issue is whether the time is predominantly for the benefit of the employee or the employer.
Suggestion: Create a policy for an emergency workplace closure. Some areas to cover:
- General information: How your organization will approach closing for business and basic expectations, including pay practices for all staff.
- Notification of closing: How will staff be notified?
- Key jobs: Some staff may be mandatory. How do you compensate when they can’t go home?
- Who decides: Specify who has the authority to shut down the operations. If you have multiple sites, you may need to designate more than one person.
- Safety: What you expect from your staff; they shouldn’t endanger themselves but should make reasonable and safe efforts to get in.
A Reminder: The purpose of this update is to review the latest developments in human resource matters. The information contained herein has been abridged from numerous sources and should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.
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