If your employer shuts down during a hurricane, will you get paid?
One of the worst parts of hurricanes is waiting in a shutter-enclosed cave, knowing havoc is about to wreaked. Employers in the predicted path of ferocious Hurricane Matthew–most of eastern Florida, George and the Carolinas–are shutting down. Even Florida’s theme parks, like Disney World, have closed.
How many days will you be sitting at home, and will you get paid? Many cash-strapped, smaller companies also may be wondering: will they be able to curtail some losses by not paying staff for every single day they’re shut down?
The answer is a big maybe.
Whether you’re entitled to be paid when the office is closed depends on whether you are “exempt” salaried or not. Just being salaried doesn’t necessarily mean you aren’t entitled to overtime. It’s possible to be salaried and still non-exempt from the requirements of the Fair Labor Standards Act. Many employers misclassify employees as exempt to avoid paying overtime. If you work more than 40 hours per week, it’s better to be non-exempt. But in the case of weather and emergency closings, it’s probably better to be exempt.
Mostly, whether or not staff needs to get paid depends on whether employees are “exempt,” salaried or not. But the laws regarding military service and disaster volunteers also are important.
Here’s what you need to know in a nutshell:
Exempt Employees: Exempt employees who work any part of the work week must be paid their entire salary if the office is closed for a natural disaster such as a hurricane, snow, tornado or flood. Department of Labor regulations state, “If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.” If the exempt employee is able to work while you’re closed for the storm, they must be paid even if they didn’t work any part of the week. Plus, if they are late getting to your office due to debris or unsafe conditions, even when it’s open, they have to be paid for any partial days they worked.
Vacation Time and PTO: Employers can deduct from exempt employees’ vacation or PTO time, but if you don’t have any vacation or PTO accrued, employers still can’t dock your pay if you’re exempt.
Non-exempt Employees: Non-exempt employees don’t have to be paid for the time the office is closed. However, if your company takes deductions and you’re a non-exempt salaried employee it may affect the way overtime is calculated.
Who Is Exempt?: Employees are not exempt unless they fall into very specific categories, such as executives, administrative employees, or learned professionals. The title matters less than actual job duties. You can’t call someone a vice president yet have them hauling equipment around or typing envelopes and still not pay overtime. In addition, your employer must treat you as exempt by not docking your pay when you miss work. This may be the rare time when it’s better to be exempt; the Department of Labor’s new rules expanding entitlement to overtime don’t go into effect until December 1.
Pay for Reporting to Work: If you report to work after a natural disaster, only to find out that the workplace is closed (assuming they didn’t notify you), many states have laws that require your employer to pay you a set minimum amount of time if you show up as scheduled. Florida has no such requirement.
Military Employees: USERRA protects military employees. Any employees called up for military service for disaster relief are legally protected. They have to give you reasonable notice, but that may be very short notice in a disaster situation. Employers can’t dock their seniority or benefits for their absence due to military service and you certainly can’t fire them. National Guard employees aren’t protected by USERRA, but they are protected by state law. Florida, Georgia, North Carolina and South Carolina all have laws protecting National Guard members.
Disaster Relief Volunteers: Florida has a law that allows state employees who are also certified disaster relief employees to take a leave of absence with pay for up to 15 working days per year. South Carolina’s similar law allows state employees up to 10 days of paid leave per year. North Carolina has a law stating that volunteer firefighters who are working disaster relief can either take an unpaid leave or use his or her PTO, at the employee’s choice. Just remember that if you’re working a for-profit company, you need to be paid–even if you “volunteer” to clean up after the storm.
Exempt Employee Can’t Come Into Open Office: Employers may dock an exempt employee who can’t come into the office for an entire day due to, for instance, their car being blocked by a tree or their street being flooded. But, the federal government will protect employees who are forced to work in dangerous conditions.
Working From Home or Alternate Location: Yes, companies must pay employees who work remotely or from a different location. Unless an employer actively prohibits such work, employees must be paid.
On Call: If employees are required to be on call for work as soon as the storm passes, for emergencies, or for any other purpose, then they have to be paid for their on-call time. If an employer has you on premises or requires you to stay nearby, then you must be paid, even if you’re not doing work.
Hopefully this will help alleviate some of your storm anxiety.
Donna Ballman is a Florida employee-side employment attorney. Her book, Stand Up For Yourself Without Getting Fired, was named the Winner of the Law Category of the 2012 USA Best Books Awards. Her blog, Screw You Guys, I’m Going Home, has been named one of the ABA Blawg 100 best legal blogs every year since 2011.