Paying California Workers During a Natural Disaster

By Patrick J. Wingfield and Kavin A. Williams September 17, 2018
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Natural disasters may force employers to tackle both operational and employment law issues. When events like wildfires and earthquakes impact operations, employers will inevitably have questions about how to properly pay workers.

Here are some of the main wage and hour issues California employers may experience during a natural disaster. 

Exempt Employees

When natural disasters shut down operations or keep employees from work, employers may question their wage obligations to exempt employees. 

During a workweek in which a worksite partially closes and exempt employees perform any work, employers must pay such employees their full weekly salaries. However, if exempt employees perform no work for the full workweek, employers are not obligated to pay any salary for the time of the site closure. 

Since performing any amount of work triggers wage liability, it may make financial sense for some employers to close operations for the entire workweek instead of paying full compensation for limited operations. 

If employers open their doors but decide to send staff home early due to deteriorating conditions, they should not attempt to deduct pay from their exempt employees' salaries. 

Employers can require exempt employees to use accrued leave time for absences due to a closed worksite. However, to avoid disputes with upset employees, employers that compel the use of accrued leave should clearly inform employees about the policy before taking any action.

Employees without accrued leave who perform any work during the week are entitled to their full salaries.

Nonexempt Employees

Nonexempt employees must be paid only for the time that they actually work. Uncertainty during an emergency may make the use of on-call time attractive for employers. During on-call time, an employee is available to work if needed but might not actually be called in to work.

Natural disasters do not alter California's strict legal requirements for on-call time.  Employees are likely owed compensation when they are required to be ready to serve—even if they are off premises. 

Several factors determine whether an on-call employee is on duty, such as whether the employee has the freedom to engage in personal activities and is free to leave a certain geographic area during on-call time.

[SHRM members-only HR Q&A: In California, what rules apply when determining what constitutes hours worked?]

Employers should be cautious about allowing employees to volunteer to assist at work during an emergency. Time spent subject to the control of an employer—even if ostensibly voluntary—may require compensation.

Employers should note that reporting-time pay may be somewhat altered by natural disasters. Generally, employees who report to work but are given less than half their usual day's work must be paid for a half day's work at their regular rate—or at least two hours of pay and no more than four hours of pay.

However, reporting-time pay is not required when the inability to provide work results from a natural disaster that is beyond the employer's control.

Remote Work and Travel Time

Working remotely may reduce some transportation challenges, but natural disasters generally do not alter wage and hour requirements for offsite employees.

Nonexempt employees must be paid for any work performed remotely, even if the time is not expressly authorized by the employer. Likewise, exempt employees must be paid their full week's salary if they perform any remote work. 

To curb unauthorized work and promote transparency, employers should structure a time and attendance policy addressing remote work and show employees the policy before they engage in such work.  

Natural disasters may increase travel time for employees who commute to a worksite. However, time spent traveling to and from work is not generally compensable or counted toward hours of work under California law. This is true even when the employee commutes in a vehicle that is owned, leased or subsidized by the employer and used for ride-sharing. But travel during work time or otherwise at the employer's direction counts as hours worked. 

Delayed Wage Payments

Natural disasters can complicate and delay wage-payment processing for designated paydays. Under California law, employers must give employees written notice of any changes to their respective paydays. Employers concerned about late processing of payroll should notify employees as soon as possible.

Patrick J. Wingfield and Kavin A. Williams are attorneys with Murphy Pearson Bradley & Feeney in San Francisco.

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