By David M. Katz
With Hurricane Sandy now one week behind us (and winter storm season staring us in the face), we thought now is a good time for a refresher on the impact of a natural disaster or other emergency on federal and state wage and hour laws. In short, the wage and hour laws provide no exceptions for wintry weather or even unprecedented natural disasters or Frankenstorms such as Sandy. So while employers are focusing on making repairs to their infrastructure and getting back to business, they should also focus on their wage and hour obligations under the Fair Labor Standards Act and state law. So, let’s get to the specifics:
Under the FLSA, employers are required to pay non-exempt employees only for hours actually worked, and are not required to pay non-exempt workers who are unable or unwilling to work due to weather-related conditions. Employees who work from home during inclement weather, whether because they typically telecommute or for weather-related reasons, must record and be paid for their hours worked. Collective bargaining agreements may include provisions requiring some form of pay as a result of natural disasters or involuntary shutdowns, and we therefore urge unionized employers to consult their applicable CBAs.
It’s a bit more complicated for exempt employees. Under the FLSA, exempt employees must be paid their entire weekly salary if they work during any portion of the workweek, even if the employer is forced to shut down operations for part of the week due to inclement weather or other emergency. There are limited exceptions to this general rule. For example, if an employee has accrued vacation or paid time off, the employer may reduce the amount of paid time off available to the employee, provided the employee receives payment equal to his or her regular salary. If an employee has exhausted his or her allotment of vacation or PTO, however, and the employer shuts down operations for less than a week, the employee’s full salary for that week still must be paid. If the employer remains open for business but the employee is unable to make it to work because of inclement weather or any other personal reason (other than sickness or accident), an employer may lawfully deduct a full-day’s pay from that employee’s salary as long as the employee does no work from home. Employers need not pay exempt workers for full weeks in which no work is performed, whether due to an emergency, a shutdown, or for any other reason.
Aside from the FLSA, there are state law nuances at play. For example, both New York and New Jersey have “reporting time” or “call-in” pay laws requiring employers to pay certain amounts to non-exempt employees who show up for work and the employer has no work to be performed–even if the employee reports to work five minutes after the workplace closes. In New York, an employer must pay the lesser of four hours of pay or for the number of hours in the employee’s regularly scheduled shift, whichever is less, at the minimum hourly wage. New Jersey law requires that an employee be paid for a minimum of one hour at his or her usual rate, unless the employee has already worked his or her regularly scheduled hours for the week. Accordingly, in order to avoid needless “reporting time” pay, it is essential for employers to implement protocols to ensure employees are adequately notified of workplace closures.
Additionally, New Jersey law prohibits an employer from terminating an employee who fails to report for work because he or she is serving as a volunteer emergency responder during a state of emergency declared by the President of the United States or the Governor of New Jersey, as was the case with Hurricane Sandy. The law does not require an employer to pay employees during their absence, but it permits employees to use accrued paid-time-off to cover the absence.
While employers are busy at this time getting up and running after this devastating superstorm, they must also understand that the wage and hour laws offer no shelter. Though an enforcement agency may take into consideration that a storm or natural disaster caused a wage and hour violation, a violation is still a violation and penalties can be severe. We therefore encourage employers to consult with us regarding these (or any other) wage and hour considerations in the aftermath of Hurricane Sandy or in anticipation of snow season.