With the hurricane hitting the East Coast and creating havoc for businesses trying to rebuild as quickly as possible, it is important to remember there are no emergency exceptions to wage and hour laws. When a company goes into crisis mode, it is still important to maintain the normal safeguards and policies that ensure the proper calculation of work time and payment of overtime. In addition, all employers should have policies in place to address the unique concerns that arise when businesses are shut down or employees are unable to work due to inclement weather.
PAYMENT FOR ABSENCES DUE TO WEATHER
First, federal law is clear that employers are only obliged to pay nonexempt workers for actual hours worked. If inclement weather shuts down a place of employment, the employer is typically not required to pay any wages to nonexempt employees, absent a contractual agreement. Exempt employees, however, must be paid for their entire work week if they perform any work during the week and they are prevented from working through no fault of their own (i.e., the business is closed because of weather).
Consider allowing or even requiring employees to use vacation or other accrued time for weather-related absences. Absent a contract or conflicting state laws, an employer typically has flexibility in this area as long as the policy is applied consistently.
VOLUNTEER WORK/WORKING FROM HOME
Exempt employees who are paid a salary can be required to work wherever and whenever the company requires. If an exempt employee is required to work at a different location or to log extraordinary hours during a natural disaster, no additional payment is required other than the customary salary. Of course, an employer can choose to reward exempt employees who go "above and beyond" during a crisis with a bonus or extra time off at a later time.
Nonexempt employees must be paid for all hours worked. For example, if a nonexempt employee works from home because his or her work site is damaged, this is compensable time and must be tracked. Similarly, nonexempt employees who perform out of the ordinary tasks for the benefit of the employer (like cleanup or repairs) must be paid for this time. An employee typically cannot volunteer to perform work for the benefit of his or her own employer.
Ensuring proper recordkeeping under normal circumstances is a challenge, but in the middle of a natural disaster doing so can be almost impossible. It is critical employers have a plan in place so employee work time can be properly recorded from home or alternate work sites, even if the office is without power, damaged or destroyed. The employer bears the burden of accurately recording all employee work time, and there are no exceptions for weather events.
PAYCHECKS
Many states have deadlines for providing paychecks to employees, and they typically do not make exceptions for natural disasters. Some states have a financial penalty for each day a paycheck is late. Accordingly, every employer should have a backup payroll strategy in the event the primary method is unavailable due to weather.
If you have other facilities that are operational, consider having checks processed or mailed from other sites to avoid delays. If you want to hand deliver checks to employees without direct deposit, consider designating a safe meeting spot to hand out paychecks.
Every company needs a contingency plan so it can continue operations in the event of a natural disaster. As explained above, a critical component of that plan should be ensuring the company continues to comply with all wage and hour laws during emergencies, and procedures are in place to continue the timely processing of payroll.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
