The longer you’re in business, the more likely it becomes that you will one day have to deal with the after-effects of a disaster. In the wake of Hurricane Sandy and the subsequent Nor’easter, many companies in the Northeastern US found themselves needing to make use of alternate or flexible work arrangements to deal with power outages, road closures and damaged facilities.
For your business, it could one day be another hurricane, a tornado, an earthquake, a wildfire, a mudslide, a blizzard, a flood or some other natural disaster.
It’s hard enough for a business to recover from a disaster as it is. The last thing you need when you’re already struggling is to find yourself in hot water over wage and hour violations. But unusual situations can lead to unusual work arrangements… which often lead to unintentional violations.
Fortunately, some of the country’s top wage and hour advisors have weighed in with answers to many common questions you might have about the employment laws that apply in situations such as this.
It’s a good idea to stock up on emergency supplies before a disaster, rather than waiting until after it’s happened and scrambling to find what you need. Just so, it’s a good idea to look through these timely reminders now, so you’ll know what to do before disaster strikes.
What if some employees work while the business is closed?
Even when a business’s facilities are officially closed, some employees may still be able to work, either coming in to the offices or working remotely. Proskauer Rose LLP remind us you still have an obligation to track work time and pay non-exempt employees for the hours they actually work, regardless of where they perform the work.
If the amount of work they did was trivial — for instance, logging in to check and reply to one email, or answering a single voice mail — such that the total time worked was only a few minutes, you may be able to avoid obligation to track and pay for that time under the principle of “de minimus.” Check with your employment law advisor to see what the guidelines are for “de minimus” work in your jurisdiction.
If exempt employees work for any part of a week, you must pay them for the full week.
Depending on employment contracts or collective bargaining agreements (CBAs) and state law, you may be able to deduct time from their accrued leave, vacation or paid time off to cover the portion of the week they weren’t working. However, keep in mind that even if their accrued time off balance has been depleted, you still must pay them for a full week if they did any work during the week.
What about employees who don’t make it in to work when the business is open?
Especially when the disaster covers a large geographic region, there may well be situations where you are able to open your facilities and have work available, but some of your employees may be unable to get to your location, or are overwhelmed with their own personal disaster recovery efforts. Employment law attorneys Seyfarth Shaw LLP state that whether you have to pay your workers (and how much) depends on whether they’re exempt or non-exempt.
For non-exempt workers, if you are open and work is available, you are generally not obligated to pay for time the employees aren’t working. Of course, you must pay them for any time they do work, regardless of whether they’re in your office or telecommuting from home or another remote location. Make sure you have procedures in place to track and report such time.
If an exempt employee misses a full day of work when the business was open and work was available, you are allowed to deduct that full day from their pay. You cannot “dock” their pay for partial day absences.
As in the situation when your business is closed, you potentially can opt to deduct from employees’ accrued leave or vacation to pay for the time they were out, depending on employment contracts, CBAs and local laws.
Some of my non-exempt employees worked extra-long hours (even staying overnight) to keep the business running during the disaster. How do I handle this “extended shift” work?
According to the Duane Morris Institute, federal law provides:
- If the employee is required to be on duty for less than 24 hours straight, they’re deemed to be working the entire time, even if they spend the time when they’re not busy sleeping or eating.
- If the employee is required to be on-duty for more than 24 hours straight, you can exclude a sleeping period from their pay, provided:
- The time provided for sleep must be at least five hours, and no more than eight.
- You provide “adequate sleeping facilities.”
- The employee is permitted uninterrupted sleep without having to perform any work duties.
The firm also reminds you to check with your labor law advisor, as your state may have more restrictive rules.
Some employees have volunteered to help clean up the offices and grounds. What are my obligations toward them?
Generally speaking, unless you’re a government agency or a not-for-profit organization, your employees can’t volunteer to do anything without pay that will benefit you, the employer. Seyfarth Shaw LLP reminds us that non-exempt employees must generally be compensated for their time, even if they’ve offered to work for free. This would include being paid time-and-a-half for any overtime hours they might work. (By law, employees aren’t allowed to waive their rights under the Fair Labor Standards Act.)
If an exempt employee volunteers to help with cleanup, you would probably have to pay them their usual weekly salary, but would not be liable for any additional payments.
If you are a government agency or non-profit, and the work the employees are doing is completely different from their regular job duties, it may not need to be compensated. You’ll want to check with your employment law attorney to make sure, of course.
Some of our managers and supervisors have offered to pitch in and cover the duties of non-exempt workers who can’t make it in to the office. How might this affect their pay?
In certain circumstances, exempt employees may find themselves doing the work of non-exempt employees. If this extends beyond a relatively brief period, the Society for Human Resources (SHRM) advises you may need to consider temporarily reclassifying those workers as non-exempt.
Remember, exempt status versus non-exempt status depends on the actual job duties performed, not on the job title. Exempt employees can usually perform some non-exempt job duties as long as the majority of their job is devoted to exempt duties. So if a supervisor spends a couple of hours (or even a whole day) covering the switchboard and reception desk, this would probably have no effect on their classification status or pay.
However, if a normally exempt employee spends the majority of a pay period on non-exempt duties, it may be a safer bet to classify and pay them as non-exempt during that pay period (including overtime, if applicable). You can then re-set them to exempt classification when they return to primarily performing exempt job duties.
In the words of the Boy Scout motto: “Be prepared!”
There are many other wage and hour issues you may have to address following a disaster: reporting time pay, how to handle on-call time, issues of Family Medical Leave Act (FMLA) eligibility and more. Beyond that, there are issues of customer communications, insurance, data recovery, etc. that will have to be dealt with.
Having a written plan is a good first step. Making sure all applicable employees are aware of the plan and have practiced what to do in the event of a disaster is an excellent second step.
The law firm of Ogletree Deakins has prepared this overview of issues you may need to consider when preparing a crisis management or disaster recovery plan. This can be a good resource when putting together a disaster recovery plan for your business. We also strongly suggest you consult with your employment law advisor to ensure your plan is in compliance with all applicable wage and hour laws and other regulations.
Don’t wait until disaster strikes — and finds you unprepared and scrambling to recover.