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Wage and Hour Issues During Disasters
Practical Law Legal Update 1-522-3617 (Approx. 4 pages)
Wage and Hour Issues During Disasters
by PLC Labor & Employment
| Published on 13 Nov 2012 • USA (National/Federal) |
This Legal Update highlights pertinent resources about employers' legal obligations regarding proper pay practices during disasters leading to office closures or mass employee absences.
Emergency office closures and mass employee absences caused by disasters such as hurricanes or pandemic flu outbreaks require employers to address difficult issues involving proper pay procedures and granting employee leave where warranted. For example, when the office is closed and employees can't come to work, what is the employer's obligation to pay them their regular wages? What if some employees are asked to work during the crisis, either from home or at another location? Practical Law Company has a collection of resources to help employers ensure that employees continue to be paid properly even during emergencies. Employers must consider various issues in continuing to comply with their obligations under the federal Fair Labor Standards Act of 1938 (FLSA), as well as applicable state laws regarding wage and hour, disability and leave.
Exempt versus Non-exempt Employees
An employer must differentiate between exempt and nonexempt employees when determining their legal obligations to compensate employees for absences during a disaster. Generally, nonexempt employees are only paid for hours worked. An employer is not legally obligated to pay a nonexempt employee who is unable to work due to illness or an office closure (see Practice Note, Pandemic Flu Preparation and Response: Nonexempt Employees).
Exempt employees, however, are paid on a salary basis regardless of the number of hours they work. An employer's ability to deduct an exempt employee's pay for missed work is limited (see Practice Note, Pandemic Flu Preparation and Response: Exempt Employees and Permissible Deductions from Exempt Employee's Salary).
Reporting Time or Call-back Pay
Nonexempt employees who work partial hours or assist during a disaster should be compensated for all hours worked, including for time spent being on call (see Practice Note, Compensable Time: Waiting/On-Call Time).
Employers should also check state wage and hour laws concerning minimum number of hours that must be paid when a nonexempt employee is on-call or appears for work for all or part of a day. For more information, see Wage and Hour Laws: State Q&A Tool: Question 5.
Modified Work Schedules
Where necessary, employers may consider asking employees to work from home, if possible. For issues to consider in these situations, including timekeeping requirements, see Standard Document, Telecommuting Policy.
Disability and Leave Laws
Employees affected by disasters may be entitled to leave under the Family and Medical Leave Act of 1993 (FMLA). For eligibility and coverage issues, see Employee Leave Toolkit. For information about employer leave obligations under state law, see Leave Laws: State Q&A Tool. Additionally, employees who are injured due to a disaster may be protected under the Americans with Disabilities Act of 1990 (ADA) and corresponding state law. For more information about employer obligations and employee eligibility issues under the ADA, see Practice Note, Disability Accommodation under the ADA.