When a hurricane, earthquake, flood, fire, winter storm or other emergencies occur, numerous employment laws are implicated, including the federal law discussed below.
Fair Labor Standards Act: Reduction of Pay and Work Hours
Nonexempt employees: Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees only for hours that the employees have actually worked. Therefore, an employer is not required to pay nonexempt employees if the employer is unable to provide work to those employees due to a natural disaster.
An exception to this general rule exists where there are employees who receive fixed salaries for fluctuating workweeks. These are nonexempt employees who have agreed to work an unspecified number of hours for a specified salary. An employer must pay these employees their full weekly salary for any week in which any work was performed.
Exempt employees: An employer will be required to pay the employee’s full salary if the worksite is closed or unable to reopen due to inclement weather or other disasters for less than a full workweek. However, an employer may require exempt employees to use allowed leave for this time.
Exempt employee chooses to stay home because of weather: If the employer is open for business, the U.S. Department of Labor (DOL) considers an absence caused by transportation difficulties during weather emergencies as an absence for personal reasons. Under this circumstance, an employer may place an exempt employee on leave without pay (or require the employee to use accrued vacation time) for the full day that he or she fails to report to work. If an employee is absent for one or more full days for personal reasons, the employee’s salaried status will not be affected for such absences if deductions are made from a salary.
However, a deduction from salary for less than a full day’s absence is not permitted. The employer may make a partial day time deduction from the employee’s leave bank (if there is insufficient time in the leave bank, no deduction from salary can be made).
Caution is recommended, however, in docking salaried employees’ pay. Moreover, many employers instead require employees to “make up” lost time after they return to work, which is permissible for exempt employees. This practice is not allowed for nonexempt employees, who must be paid overtime for all hours worked over 40 in a workweek.
