Important Hurricane Information Regarding Working from Home and FLSA
We want to share this is important information for all business owners and HR executives who are or may be affected by Hurricane Sandy. It’s from the Duane Morris Institute blog and written by Jonathan Segal, an attorney who regularly writes about wage/hour, ADA, FMLA and other compliance issues:
As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed. However, you generally can require that an exempt employee use PTO during a day in which you close.
(SOURCE: duanemorrisinstitute.com article “Avoiding Wage and Hour Hurricanes After Sandy” by Jonathan Segal posted 10/27/12
In case you had any doubts or thought it wasn’t a big deal, you are required by law to pay workers if they work from home. This includes non-exempt employees, and they must record their time in accordance with an established system so that they are properly paid.
Not closing shop because of the hurricane? Segal says that if an exempt employee does not come in for work, then you don’t have to pay him or her for the day. A full day can be treated as if it were an absence for personal reasons, in this situation. Keep in mind that if an exempt worker arrives late or leaves early on account of the hurricane, a full day must be paid. You may still be able to require that paid time off (PTO) be used in this case to cover the non-working time, however. Segal also says that you do not have a legal obligation under the FLSA to pay your non-exempt employees who don’t work because of the hurricane (whether you close or the employee is unable to work), unless they fall under an exception provided for non-exempt employees who are paid under the fluctuating work week schedule.
Segal makes a wise recommendation, in our opinion, when he suggest that “Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed.”
It is very important to stay in compliance with state laws as well as federal ones. Your state may impose additional requirements or restrictions. Segal gives as an example New Jersey laws, which have call-in requirements, where if an employee is sent home after coming in to work, he or she is entitled to a minimum number of hours’ pay. Don’t forget any payment obligations you have under collective bargaining agreements and/or your own company policies, either.
“This is why is it so important for companies to have systems in place to clearly lay out rules for emergency situations, such as Hurricane Sandy, where employees may end up working from home or remotely,” says Bonnie Levitt, MSW, PHR, hireVision’s Director of Hiring Management Services. “And it’s not just about how employees record their time to be properly paid, either. You should have clear policies in place on what to do in case of an emergency for any issues that could seriously effect your team and business, such as safety plans, continuation of service to customers, chain of command and information dissemination.”
BOTTOM LINE: Hope for the best, but plan for the worst—and remember that wage and hour laws will prevail, even in the face of natural disasters!
Want some help before the next emergency strikes your business?
hireVision provides human resources outsourcing services to help you navigate those tricky compliance waters and build better employee relations at the same time. We know the importance of HR documentation and can create a customized employee handbook for you, which can be a valuable tool that clearly represents your unique organization. We are experts at putting together well-written, up-to-date handbooks that you will be proud to distribute and that will go a long way in improving employee relations. We comprehensibly outline your expectations, policies and legal obligations as an employer, and we also make certain your employees’ commitments and rights are spelled out in clear and easy to read terms