WEATHERING THE STORM AND ITS AFTERMATH
Hurricane Matthew was a nice reminder that life in the Sunshine State isn’t always predictable. Prior to Matthew, it had been a while since we had to prepare for and recover from a hurricane. Quite frankly, this native Floridian enjoyed the break. If I don’t see another wing nut again, it will be too soon. I digress…the point is Hurricane season just began and this is a great time to revisit your emergency policies! I know, probably not worthy of the exclamation point. But, quite a few folks found some “holes” in their existing policies last October. The day before Hurricane Matthew hit our community, most people were thinking about plywood, water, shutters and canned goods–yes, that includes adult beverages. But, many HR professionals found themselves scrambling to respond to questions about payroll that had not been raised in over ten (10) years.
Whether you are updating an old policy or creating a new one, you should first consider the nature of your company’s business and its culture. Determining whether the community needs your products or services to assist in recovery, how quickly you can (or should) recall employees after the “all clear,” which employees are essential (if any) to work during the storm are all critical to a comprehensive policy. Yet, the most frequently asked questions refer to paying employees. Can we? Should we? Do I have to? A policy that clearly identifies how and when employees will be paid for time worked and time away from work during the storm event will be invaluable in setting and meeting your employees’ and your company’s expectations. So, here is a quick summary to get you started:
Employers are not required to pay non-exempt employees for time not worked during a storm event even where the business is closed due to the storm.
If your company chooses to pay non-exempt employees for hours they would have normally have been scheduled to work during the storm event, the FLSA does not require that you count those hours toward any overtime hours. The policy should address how many business days, calendar days, or shifts the company is willing to pay for non-worked time during an emergency. Confusion can arise if the policy simply states that it will pay employees “during hurricane closure” or during the “declared emergency.” Remember our friend Andrew? Some companies were closed for weeks. The policy should specifically define what triggers payment and when it ends. The maximum time frame or number of hours will come in handy during any longer-term emergency situation.
As you know, exempt employees must be paid on a salary basis for each work week without regard to the quality or quantity of work. While there are limited permissible deductions that may be made, do not assume you can dock an exempt employee’s pay during a storm event.
The DOL issued an opinion in 2005 advising that if a business is closed due to a storm event for less than a full work week, the employer must still pay the exempt employee the full salary for that work week. The employer may, however, require that the employee substitute vacation leave or other paid leaves during the time the employer’s facility is closed. But, if the employee has exhausted the paid leave bank and they are out for less than a full work week, you must pay the full salary for that workweek.
Where a storm event closes a business for an entire work week and the exempt employee does not perform any work during that work week, the business is not required to pay the exempt employee. It is a challenge to ensure exempt employees do not perform any work with the proliferation of “smart” devices. Even during a storm event where power may be lost and some cell phone towers may be down or inoperable, it would behoove you to address whether nonessential exempt employees are permitted to perform work during the storm event and require them to report any time worked.
Employee’s covered by Collective Bargaining Agreements. Well, you can forget just about everything above this paragraph. If you have employees covered by a Collective Bargaining Agreement, you must abide by the agreement. Many agreements will provide that the terms of the agreement are waived during a declared emergency except, of course, the financial provisions relating to wage rates, overtime, etc. With that said, read your union contract. I cannot stress this enough. In fact, I suggest you do this now to ensure you know what the emergency provisions are and how the overtime, call back or standby pay provisions might come into play during these storm events. If this is not addressed in the agreement, or not addressed sufficiently, you may want to put this on your list of items to address at your next bargaining session.
Even though we don’t know when Mother Nature will give us another good scare, filling the gaps in your current policy (or collective bargaining agreement) will give you a jump-start on the next event. Once you’ve got that done, pat yourself on the back, kick your feet up, and pop open one of those “canned goods” you stocked up on while preparing your hurricane kit for this season.
Lara Donlon, Esq., SPHR, SHRM-SCP, is a shareholder with Torcivia, Donlon, Goddeau & Ansay, P.A. She leads the firm’s Labor and Employment Law Group and focuses her practice on representing private and governmental clients with respect to human resources matters including litigation and general counseling. Ms. Donlon will be presenting The LGBTQ Workplace—Ensure Compliance, Expect Tolerance, Strive for Acceptance at the HR Florida Conference—register now at hrflorida.org!