What’s Hurricane Florence got to do with Employment Law?

Fortunately, our region has been spared the severe effects of Hurricane Florence, but employers affected by it will have to consider its impact not only with regard to physical damage to their operations but also concerning several employment law issues. The northeast is not immune from natural disasters so Hurricane Florence crates an opportunity to consider in advance how Employers in our region need to think about such things when there is a cessation of work for any reason.

How do Employers account for employees on FMLA leave during a natural disaster? Regardless of the cause, if an Employer ceases operations for a week or longer, the Employer may not charge an employee on FMLA leave for that time. Beyond one week, the time the Employer is closed does not reduce the FMLA time available to the employee. If an Employer is closed for less than a week, the full time closed counts against the employee’s available FMLA leave unless the employee is taking intermittent leave in less than one-week increments. In that case, if an Employer closes for less than a week the days closed count against an employee’s available FMLA leave only if the employee would have been expected to have worked those days if the Employer had not closed. This is similar to accounting for FMLA leave when a holiday occurs. Normally, a holiday is not deducted from charged FMLA time used for employees taking leave in increments of a week or more. Employers also need to consider the effects of similar state law leave statutes.

The FLSA establishes a federal minimum wage and requires overtime pay when an employee has worked more than 40 hours in a work week. Must an Employer pay its workers when it shuts down because of a natural disaster? Nonexempt employees must be paid only for time actually worked. Generally speaking, nonexempt employees do not need to be paid for plant closures, irrespective of the reason for the closing (however, beware of requirements of a CBA). Some nonexempt employees are paid on a fluctuating work week. The general rule does not apply to them: they must be paid their full weekly wage if they work any part of a work week.

Exempt employees must be paid their entire weekly wage if the Employer ceases operations, regardless of the reason, if the closure lasts less than a week so long as the employee was ready, willing and able to work. The period of shut down may be deducted from a nonexempt employee’s available PTO. For periods that the Employer is open but the exempt employee is unable to work due to weather conditions, the Employer may deduct from wages in full-day increments so long as the employee performs no work on days for which a deduction is taken. Improper deductions from an exempt employee can call into question the employee’s exempt status and result in an employer being exposed to overtime claims. “On call” employees are treated the same in cases of natural disasters as they would be otherwise. If, during a natural disaster, an employee is on call, such that he or she cannot use the time for personal matters, the employee must be paid. If the employee is merely “waiting” and can use the time for personal affairs he or she need not be paid for such time. Again, Employers should consult applicable state wage and hour laws.

Employers must provide a safe workplace. If disaster relief efforts by employees pose a risk to their safety, Employers must address those risks.