Hurricane Guidance for Employers in 2020: Wage & Hour Considerations
Tampa, Fla. (September 11, 2020) - As the 2020 hurricane season peaks, companies impacted by this year’s hurricanes, including Hurricane Laura, face a host of employment law concerns, including significant challenges maintaining compliance with wage and hour laws. Moreover, COVID-19-related considerations may add an additional layer of complexity to these already existing challenges.
This alert provides general guidance about those issues under the Fair Labor Standards Act (FLSA). Note that state and local laws may impose more stringent or different requirements, and this guidance should be reviewed in conjunction with applicable legal requirements associated with the COVID-19 pandemic. Legal and human resources professionals should seek the advice of counsel if specific questions arise or assistance is needed developing policies and procedures.
Whether an employer is required to pay its employees if it cannot operate or continue full operations depends on the status of the employee as exempt or non-exempt under the FLSA.
Under the FLSA, an employer is not required to pay non-exempt employees for time not actually worked. Non-exempt personnel need not be paid for days they did not come to work or for days the business was closed due to weather or storm-related damage, assuming no remote work was performed. Non-exempt employees who are paid on a fluctuating workweek basis, however, must be paid their full weekly salary if any work is performed during the workweek.
Many employers have learned to deal with the COVID-19 crisis by allowing some employees to work remotely. Similar lessons may be applied in response to a hurricane, including allowing employees to work remotely (if possible). An employer is still required to pay its overtime eligible employees for all hours worked, including work not requested by, but suffered/permitted by the employer. Therefore, the employer will need a method for tracking or recording of remote work performed. In fact, the Department of Labor strongly encourages employers to establish “reasonable reporting procedures” for employees to report time worked. See Field Assistance Bulletin No. 2020-5 (August 24, 2020). The presence of such procedures (provided their use is not discouraged) establishes defenses to alleged violations of the FLSA.
Employees who are “on call” must be compensated if they are not able to use the time for their own purposes because of the restrictions placed on their time by their employer. The fact that an employee is unable to use their time for their own purposes because the storm took out power (or caused some other disruption) does not turn the time into compensable work time. Some employers are also subject to state law reporting time requirements that require employers to pay a minimum amount to employees who show up for work, even if they do not actually perform work. (Florida does not have this requirement.)
However, if an employee reports to work and is required to wait, for example, for power to be restored, that time is compensable waiting time. The employer is essentially “engaging” them to wait.
Additional considerations for non-exempt employees:
- Employees are not required to be paid for longer than usual commuting time caused by the storm if the employee is called in.
- Do not permit employees to “volunteer” their time to help the company. Time spent on disaster relief or other activities on behalf of the employer may be compensable and performed while on the clock.
- If time records have been destroyed, an employer must engage in reasonable efforts to document all time worked and properly compensate employees.
- Collective bargaining agreements may impact whether an employee must be paid beyond the requirements of the FLSA or if certain employer obligations will be suspended.
Exempt employees must be paid their full weekly salary if they work at any time during the workweek, even if the business is closed for part of the week. It is not permissible to pay a pro-rata salary or to deduct from an exempt employee’s pay based on the quantity of work performed during the week. If the business is completely shut down and no work is performed by the exempt employee for an entire workweek, exempt employees are not required to be paid. However, care should be taken when asserting this position. Remember, exempt personnel can work remotely when a business location is shut down due to the storm – making cellphone calls, answering emails from clients or staff, etc.
There are also circumstances where it may be appropriate to deduct a full day of pay from the weekly salary of an exempt employee. For example, if the business remains open but an employee cannot get to work due to weather conditions, the employer may be able to treat that time as a personal leave and deduct a full day of pay. Less than a full day cannot be deducted without jeopardizing the exemption status. Exercise caution when considering not paying exempt employees their full salary. It can be a legal and employee relations minefield that may well outweigh any potential cost savings.
Other Practical Hurricane-Related Considerations
Employees are not entitled to time off for personal activities such as finding a new place to live, reuniting with loved ones, or clean-up activities, but employers may wish to make such time available. Limits should be placed on the time off allowed so that it is clear when an employee is expected back at work, if the time will be paid or unpaid, and if an employee will be required to use accrued paid time off (PTO). Employees can be required to use accrued PTO or vacation time to cover absences, in accordance with company policies.
Employers should clearly communicate that it is the employee’s responsibility to request an extension of time off if needed, which is not guaranteed, and that a decision will be made at that time in accordance with the needs of the business and applicable laws such as the Family and Medical Leave Act (FMLA) and state leave laws.
Be aware that emergency response and military personnel may be called out to respond to the emergency. If this occurs, the employee’s absence may be protected under state or federal law (for example, under the Uniformed Services Employment and Reemployment Rights Act (USERRA)). Care should be taken before disciplining any employee in these circumstances.
Furthermore, employers should note that payroll is still due on the normal payday, regardless of inclement weather. Storms can sometimes disrupt payroll, forcing employers to find alternative pay methods, but it is imperative that pay is remitted on the usual schedule.
Finally, employers should maintain current contact information for all employees to ensure that they are able to communicate effectively throughout any recovery efforts.
We hope that everyone stays safe and healthy throughout this storm season and beyond. We also understand that emergency situations can quickly become complicated. Please do not hesitate to contact us and we will be happy to walk you through your HR-related crisis.
For further guidance, visit our Labor & Employment Practice page to find an employment attorney in your area. Lewis Brisbois also has a dedicated COVID-19 Attorney Response Team to help your business with the myriad legal issues arising from the pandemic. Visit our COVID-19 Response Resource Center to learn more.
Mary A. Smigielski, Partner
David S. Harvey, Jr., Partner
- Labor & Employment
- COVID-19: Labor & Employment
- FEMA Disaster Recovery Assistance & Environmental Compliance Relief