Winter’s El Niño 2026-2027: A Wage and Hour Survival Guide

With an unpredictable and potentially inclement winter ahead due to El Niño, employers need to know how to operate safely and in compliance with wage and hour laws even if internet or power outages interfere with remote work, when such work is feasible. But do not assume office or site closures solve all potential wage and hour problems.

The key is to explain the wage and hour rules before a storm hits, said Natalie Bare, an attorney with Greenberg Traurig in Philadelphia. “That training matters because supervisors often make real-time decisions about reporting to work, remote work, and outages that can affect employees’ pay,” she said. Consistent guidance can help prevent unlawful underpayment. 

Managerial training includes explaining to supervisors how to appropriately manage remote work and timekeeping, said Justin Barnes, an attorney with Jackson Lewis in Atlanta.

Employers need to have comprehensive remote work policies in place if they are going to allow nonexempt employees to work from home, he noted.

The policies should, he said, make it clear that all nonexempt employees’ work time must be reported and that “off-the-clock” work by them is prohibited. 

“Off-the-clock work is any work a nonexempt employee performs without recording the time — and therefore without getting paid for it,” said Jeffrey Brecher, an attorney with Jackson Lewis in Long Island, N.Y. “In practice, it often looks like replying to emails before a shift, finishing tasks after clocking out, or handling work calls during an unpaid lunch.”

Remote work policies also should address expense reimbursement issues, Barnes added. 

If remote work is permitted even when the worksite is closed, state law may require reimbursement of costs employees incur when working remotely, such as internet or equipment expenses, Bare noted.

Policy: Inclement Weather

Outages

“When remote workers lose internet access, what the employer should do depends on whether or not there is internet connectivity at the work location,” said Charles McDonald III, an attorney with Ogletree Deakins in Greenville, S.C. “For example, if an employee loses power or internet access at home but the office remains operational, the employer may require the employee to report to the office if safe to do so,” he said. 

If a nonexempt employee loses internet access but is not required to come in, the employee is on personal time and does not have to be paid for the time they cannot perform any work without access, McDonald added.

Once service is restored, the nonexempt employee should clock back in and resume working, he said. 

Exempt employees, by contrast, must be paid even if they lose internet access or power for part of their workday. Their salary for such a problem cannot be reduced due to such outages.

An employer does nonetheless have the option during inclement weather to require use of vacation or paid time off, if the employer opts to, McDonald added.

Toolkit: Complying with U.S. Wage and Hour Laws

Safety

“The availability of remote work, particularly in certain industries, does allow employers to take employee safety into account, keeping employees off the roads if they can do their work remotely,” McDonald said.

Even for employers that would ordinarily require in-office presence, when inclement weather arises, it is easier to put employee safety first when an employer has remote work as an option.

“When remote work is not an option, many businesses will try to have as many employees safely report to work as possible so production can continue,” he said. “There are businesses where remote work is just not a viable option, even during inclement weather.”

Closures

When inclement weather results in office or site closures, there still may be wage and hour obligations even after the closures, Bare cautioned.

“Employers should not assume that a storm-related closure automatically eliminates all pay obligations,” she emphasized. “State law may require minimum compensation when an employee reports to work as scheduled but is sent home or receives less work than scheduled.” 
The trigger under these laws, amounts of pay, notice requirements, and other details vary by jurisdiction.

In addition, if employees are expected to remain available or ready to resume work, that waiting time may be compensable, Bare pointed out.