Should Employees Who Have Been Evacuated Be Paid During a Hurricane?

 

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP September 5, 2019
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​As Hurricane Dorian makes its way up the United States' Southeastern coast, many businesses will close and workers will be displaced. Employers should be prepared to answer important questions, including about whether employees will be paid during the storm.

"The safety of employees is always of paramount importance, and keeping open lines of communication throughout a hurricane or other inclement weather is key," said Kimberly Doud, an attorney with Littler in Orlando, Fla.

Paying Nonexempt Employees

Employers generally have to pay nonexempt employees only for time actually worked.

"So, if an employer closes a facility or cancels a work shift due to inclement weather, the nonexempt employees thereby affected would not ordinarily be entitled to compensation," said Keith Kopplin, an attorney with Ogletree Deakins in Milwaukee.

But exceptions may apply. For example, some nonexempt employees are paid using the fluctuating-workweek method of calculating overtime. Under this method, employees who are entitled to overtime pay receive a fixed weekly salary, which is divided by the actual number of hours an employee worked in the week to determine the week's base hourly rate. The employees will then receive an additional 0.5 times their base rate for each hour worked beyond 40 in the workweek.

There are some limited exceptions, but workers paid under this method generally must be paid their full fluctuating-workweek salaries for every week in which they perform any work, explained Caroline Brown, an attorney with Fisher Phillips in Atlanta.

Employers should note that state and local laws may impose additional wage and hour requirements. But many local laws that require employers to give advance notice of schedule changes exclude otherwise untimely changes to an employee's work schedule that are based on natural disasters and other emergencies, Kopplin noted.

Different Rules for Exempt Employees

Under the federal Fair Labor Standards Act (FLSA), workers must be paid 1.5 times their regular rate of pay for hours worked beyond 40 in a workweek—unless they are exempt from receiving overtime premiums. Employees who are exempt from overtime pay under the FLSA's executive, administrative and professional exemptions must be paid on a salary basis.

"Generally speaking, if such an employee performs at least some work in the employee's designated seven-day workweek, the salary basis rules require that they be paid the entire salary for that particular workweek," Brown said.

Depending on state laws and employer policies, employers may be able to deduct from employees' available paid time off.

"There can be exceptions," Brown noted. For instance, an employer that is open for business usually doesn't have to pay an employee who decides to stay home for the day and performs no work.

Such absences and related deductions must be in full-day increments, Kopplin said, noting that exempt employees also do not need to be paid if their employer closes their facility for one full workweek or longer.

"The employer would need to ensure that the exempt employee did not perform work remotely," he added.

Employers should review their existing policies and practices and apply them consistently. "An employer might have a legal obligation to keep paying employees because of, for instance, an employment contract, a collective bargaining agreement, or some policy or practice that is enforceable as a contract or under a state wage law," Brown said.

Working Through an Emergency

Nonexempt employees must be paid for all work performed and receive applicable overtime premiums, even if an employer didn't authorize the work.

Some employers choose to go beyond what is legally required and pay premiums to employees who work during an emergency, said Deniece Maston, SHRM-CP, an HR Knowledge Advisor for the Society for Human Resource Management (SHRM). "Employers should consider the type of work being performed and the conditions in which it is performed, as well as other similar policies regarding hazard pay or working on holidays or during other company closures," she said during a SHRM Blog live chat.

Employees may also be willing and able to work remotely during the hurricane. In this scenario, employers may need to rely on employees to self-report their hours worked, Doud said. "To help minimize the risk of wage and hour violations for employees who work from home or another remote location, employers must implement, communicate and strictly enforce a time and attendance policy, clearly explaining what constitutes compensable time and requiring nonexempt employees to record all time worked accurately."

Exempt employees, of course, must be paid their regular salary in this circumstance.

Kopplin noted that employees don't need to be paid for time spent confirming their whereabouts, safety, or status, or for time spent reviewing status updates from their employer. Employees who are required to communicate about work-related matters during a natural disaster, however, should be paid for their time.

If an employer's time-keeping system is unavailable during the hurricane, employees may record their work hours by using handwritten time sheets or by other means, Brown suggested. To ensure accuracy, employees should enter their own time and record the actual times when work starts and stops each day, she said.

Communication Is Key

"Employers experiencing a natural disaster or other emergency need to be able to communicate in a timely and effective manner regarding safety issues and business continuity," Kopplin said. That requires careful planning, including the identification of key personnel, coordination with local emergency services, and the use of mass communication tools that allow quick and consistent delivery of critical information to affected workers.

[SHRM members-only toolkit: Managing Through Emergency and Disaster]

Doud recommended that employers take the following steps:

  • Develop an inclement weather policy that answers frequently asked questions about office closures, remote work and wage payments.
  • Identify emergency communication channels and ensure employees know how each will be used.
  • Follow up after the storm to confirm that employees and their families are safe and aware of when the employer will return to business as usual.

 

Visit SHRM's resource page on weather disasters.

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