With Hurricanes Come Unprecedented HR Challenges

Author:Mr Michael Casey, III
Profession:Duane Morris LLP

This article is reprinted with permission from the Daily Business Review.

Unlike some states, Florida has no law which prohibits employers from taking action against employees who refuse to work because of an impending hurricane. But, when a hurricane or other emergency occurs, numerous federal employment laws are implicated.

Employee Pay

When a natural disaster causes a reduction of work hours, the Fair Labor Standards Act—the federal wage-hour law— is implicated. The FLSA requires employers to pay non-exempt 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 when there are employees who receive fixed salaries for fluctuating work weeks. These are non-exempt 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.

For exempt employees, an employer must 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 work week. But an employer may require exempt employees to use allowed leave for this time.

An exempt employee who chooses to stay home because of weather may be placed on leave without pay or be required to use accrued vacation time for the full day he or she fails to report to work. The Department of Labor considers an absence caused by transportation difficulties experienced during weather emergencies, if the employer is open for business, as an absence for personal reasons. If an employee is absent for one or: more full days for personal reasons, the employee's salaried status will not be affected if deductions are made from a salary for such absences. But a deduction from salary for less than a full-day's absence is not permitted.

I recommend caution, however, in docking salaried employees' pay, and suggest you first consult with legal counsel. 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 non-exempt employees, who must be paid overtime for all hours worked over forty hours in a work week.

Employee Leave and Safety

Employees affected by a natural disaster are entitled to leave...

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